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Judging Requires Judgment
Driver, Justin
Driver, Justin
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Abstract
The article focuses on the evolving role of judgment in constitutional interpretation, particularly within originalism and its relationship to stare decisis (the doctrine of precedent). It traces the rise and fall of living constitutionalism and the concurrent ascent of originalism, highlighting Justice Antonin Scalia’s influential but pragmatic originalism that embraces precedent to avoid legal chaos, contrasting with Justice Clarence Thomas’s more absolutist stance that original public meaning should always prevail over precedent. The piece critiques the emergence of “Nutty Originalism,” an uncompromising originalism rejecting precedent, as exemplified by Justice Thomas and Judge Patrick Bumatay, and contrasts it with more moderate originalists like Justice Amy Coney Barrett, who acknowledges the necessity of balancing originalism with precedent. Emphasizing that “judging requires judgment,” the article argues for constitutional pluralism, recognizing multiple interpretive modalities and the indispensable discretion judges must exercise, while cautioning against rigid ideological labels that oversimplify jurists’ approaches and contribute to polarization in constitutional discourse.