Precedent, or stare decisis, is fundamental to our constitutional system. Alexander Hamilton urged in Federalist No. 78 that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” But U.S. judges must be governed first and foremost by the written Constitution. A Hamiltonian respect for both “rules and precedents” becomes more complicated when old precedents conflict with judges’ reading of the Constitution.

The U.S. Supreme Court confronts such a moment, as a conservative majority applies an originalist methodology different from the dominant jurisprudence of a prior generation. In this weeklong, residential program, fellows will consider landmark decisions that could be overturned by the Court and their implications for American politics. Led by legal and policy expert Adam J. White, the program will also feature guest lectures from Supreme Court advocates who will bring their practical experience to bear on key constitutional questions—from precedent’s place in judicial decision-making to judicial legitimacy and public opinion, and the Court’s counter-majoritarian role in a democracy.

Image: Victoria Pickering, Protesting at the Supreme Court, via Flickr

Adam White on the conservative legal movement


Adam J. White

Adam J. White is a senior fellow at the American Enterprise Institute, where he focuses on American constitutionalism. Concurrently, he codirects the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.

Preview the Syllabus by Week/Session


Discussion Questions:

  1. How bound are we by judicial precedents, according to Lincoln?
  2. What is the proper relationship between written laws and judicial precedents, per Hamilton?
  3. What is the relationship between stare decisis and the judge’s (or lawyer’s) temperament?


Discussion Questions:

  1. In reviewing the constitutionality of Harvard’s and North Carolina’s admissions programs, what is the most relevant Supreme Court precedent?
  2. What is the most significant precedent?
  3. Which side is more committed to precedent—the parties challenging the universities’ policies, or the defenders?

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