The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis

P. Thomas DiStanislao III*

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk named Madison Nomos is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case—one with which his Justice vehemently disagrees—should play a significant role in the Court’s analysis of an issue that has gripped the nation. Nomos’s Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has tasked the clerk with providing support for her argument that the Court should abandon its prior ruling. Nomos has been working on the opinion for hours and is no closer to reaching a conclusion than when he started. Though the courthouse is empty, the clerk hears a noise as the doors at the end of the room fling open. Justice Antonin Scalia and Justice Louis Brandeis enter the room, engaged in a heated argument over Webster’s New International Dictionary: Second Edition (1934).

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* Law Clerk to the Honorable Henry E. Hudson, United States District Court, Eastern District of Virginia, Richmond, Virginia. J.D., 2016, University of Richmond School of Law; B.A., 2011, Wake Forest University. Any views or opinions expressed herein are my own. Thanks to Professor Kevin Walsh, Chris Keegan, Ann Reid, Chris Rohde, and Andrew McGowan for their suggestions and ideas. I remain indebted to my father, Phil DiStanislao, for his willingness to share his virtuosic ability to use sports metaphors to explain all aspects of life and the law. And as always, none of this would have been possible without my wonderful wife, Elizabeth. Finally, I would like to thank Glenice Coombs, Rachel Willer, and the University of Richmond Law Review staff members for their work editing this dialogue. Any remaining errors are my own.