Good morning, everyone. I am dean, Senior Vice President and general counsel of the Federalist Society, for those of you dont know me. You i think you all for being here. You are the stalwarts that show up in 00 a. M. In the morning after the annual dinner. Thank you for being here. I thought we had a great day yesterday capped by a great night last night. Im so happy it seems that very few of you went to Union Station last night. I count that as an additional success. I have been asked about last nights events, so i will tell you all at once, the official count, we had four justices of the Supreme Court in attendance last night. Justice barrett, but also justice gorsuch, kavanaugh and alito. The four justices were unable to issue any decisions, but they couldve made a third grant, so keep an out for the orders list. On logistics, if you are gting , using the qr code to sign in, make sure you do that. Dont miss the rare documents exhibit. Qr de to sign in, make sure you do that. Dont miss the rare document exhibit. I mentioned it yesterday, on the second floor, and enter the drawing. The item i held up yesterday is the door prize. It is a very handsomely framed page from a First Edition federalist papers. So, its quite something to have any need to go to the South Carolina room to see the documents and enter for that. Just to reassure you, they did not destroy a First Edition copy of the federalist papers, this is an addition that was beat up, it was compromised in a lot of ways. They salvaged some pages. Theres only four of them. You can see the documents and enter them to win. We have another great day planned today. Beginning with our Panel Discussion on precedent and originalism. Before we get to that i want to mention the days events. We have five book signings that might not be clear in the Program Later this morning on the mezzanine level. If you have not been to the mezzanine level, its a nice less crowded place you can go to. Theres coffee out there, theres ectricity, you can charge your phonesnd your laptops. After a flurry of breakout panels all day long and another fireside chats, and a special session on natural law, we will finish the day with bari weiss as she delivers the wholesome lecture. Im honored to introduce the moderator of our Showcase Panel on precedent. Judge breyer served on the 11th circle Circuit Court of appeals for 20 years. In clerk years thats 80 years. Meaning he has a mentor i just coined that notion, he has mentored and credentialed, and brought along a clerk family of 80 mennd women, quite a legacy in it of itself, but before taking the bench he served as alabamas attorney general, where, among other things, he founded and led which has become a check on federal power and in enforcer of the rule of law. I could say much more about bill pryor, but i will close with one note. Internally at the Federalist Society, when i try to find a speciaspeaker or special guest or someone special to fill a slot, in terms of somebody who is of the Federalist Society is what think. The inner circle. A face or a name you think of or ihink of when you think of the Federalist Society. Judge breyer is certainly of the Federalist Society. He founded nearly every alabama chapter of the Federalist Society, student or lawyers chapter. He is so ingrained and integral, he is a part of the dna of it. I am proud to welcome him today, judge breyer. [ judge prior. [applause] goomorning, thank you, dean, for that kind introduction, i thought you scheduled me to be the moderator this morning, the morning after the dinner because he wanted something a little rambunctious from me this year in contrast with last year. Our pic this morning is whether precedent, no one maintains that the Supreme Court has always and forever been originalist in its orientation. By any definition of originalism, there is a vast body of case law that does not conform to it. How do and should modern originalist, including inferior court judges, who consider themselves originalists, handle this caseload. Do nonoriginalists precedents count for nothing, no matter the expectation built upon them . If they count, how much do they count . In the light of the structure of the constitution, doesnt make see to be originalist in some respects in some contexts but not others . Does originalism itself provide means to answer or even address these questions or does one necessarily haveo step outside originalism to establish its relationship to precedents. To discuss these questions, the Federalist Society, as usual, has assembled a distinguished panel of scholars. I will introduce each of them in the order in which they will speak, each of them will speak give oress, about 10 mines, maybe. Maybe a little more. We have ample of time beforwe open it up. Our first speaker, randy, is associate dean androfessor at law at the university of notre dame. Theres been a notre dame takeover this week. Its so quaint, they think they stayed up they think they still play football there. [laughter] he also directs the notre dame program on constitutional structure. His book, settled vers right, a theory, a precedent makeshe case for using precedent to bridge interpretive disagreements. The professor received his jd magna cum laude from Harvard Law School where he was the Article Committee chair of the harvard ball review. He served as a law clerk to Justice Anthony kennedy on the Supreme Court, and as a clerk to judge kaczynski of the United States court of appeals forhe ninth circuit. Gary lawson is the professor of law at bostonniversity school of law. And, importantly, the secretary of the board of directors of the Federalist Societys, one of its founders. He previously taht at Northwestern UniversityPritzker School of law, professor lawson a graduate of Claremont Mckenna college and he received his jd from yale law school. He served as a law clerk to justice Antonin Scalia. Ithen judge Antonin Scalia on the United States court of appeals fothe district of columbia. Then later as a law clerk for Justice Scalia on the Supreme Court. John mcginnis is a professor at Northwestern UniversityPritzker School of law or professor plus where professor lawson previously taught. Professor mcginnis is a gduate of Harvard College and learned earn his jd from Harvard Law School wheree was an editor of the harvard ball revi. He also has a masters of arts degree from bail college in philosophy and theology. Professor mcginnis served as a law clerk to judge can start on the United States court of appeals for the district of columbia circuit. From 1987 to 1991, he served as the Deputy Assistant attorney general in the Deputy Office of counsel at the department of justice. He is the author of accelerating democracy, transforming government through to knology and originalism and the good constitution with mi rappaport. He is a past winner of the paul bapour award given by the Federalist Society to announce outstanding academic under the age of 40. Last but not lst is professor tara grove, the chair of law at the university of texas school of law, i have to pay my respects, they do pay ey do play football again. She graduated summa cum laude from Duke University and she earned her jd, magna cool latte from harva law school, where she served as the Supreme Court chair of the harvard ball review. Professor grove clerk for judge gars on the United States court of appeals for t fifth circuit, where i started my career, and then spent four years as an attorney for the department of Justice Civil Division appellate staff. She is a coauthor of low and jeffreys federal courts in the law federal state relations and she has served as the chair of the federal Court Section of the association of american law schools. She also previously received the paul bap touaward. De . [applause] thank you, judge. Let the record show i made it almost to 9 15 am before i stopped at the first insult to notre dame football today. Next year is a brandnew year. Thank you all for being here. And i was teaching and friday morning. In part because the people who opt in on friday mornings are a special breed. Thank you for being here today. This morning, i will be arguing that originalism goes handinhand with the president and the doctrine. Even more than that, i will argue that it strengthens the case for originalism by promoting ideals of stability, personality andonstraints within an originalist framework, and i will argue we should be skeptical of any account of originalism that squeezes out, not only because of potential for disruption, but due to th long line of justices and constitutional thinkers have described precedent as legitimate and valuable part of the judicial process. Since i will talk about the virtues of precedent, i suppose its only fitting that i will look backward to october 24, 1989. On that day, Case Western Reserve University hosted a distinguished lectu in this speaker was Justice Scalia. He took aim at a variety of legal cliches, too ofn the just take explain the legal cant keep pace. Most relevant to the topic of todays panel, Justice Scalia challenged ralphs famous line, a foolish consistency is a hobgoblin of little minds. Justice scalia did not criticize emerson per se, as the justice put it, its sound policy to leave poets alone if they leave you ale. But his objection was to the attack on nsistency because as Justice Scalia noted consistency is an idea that resides at theore of law and logic. In the legal world, consistency is made manifest through the doctrine of set sacrifice. Its equal parts legal rule and traditional mindt. At the most basic lel, it urges judges to le things remain settled instead o constantly rewriting the rules and rehashing the past. We are here today to talk about originalism and particularly their weekends broader theme of origalism on the ground. The big question is whether originalism has room. I think the answer is, yes, the two are compatible. More thanompatible, actually. Becae it dramatically improves the case for originalism on the ground. That is the poinJustice Scalia made when he made out his originist philosophy in a matter of interpretation. He described it is crucialo prevent originalism from being so disruptive of the established state of things that it loses much of its utility. The justice had it right about the role of precedent. Its not just about making originalism palatable, its about making originalism functional. I start from the premise that in a democratic system that protects basic liberties and promotes human flourishing, in a country like the u. S. , any legal theory that would lead to massive people has a problem on its hands. Thats mynclination. It doesnt have analytical. The legal case first star decisive begins with hisry. And the fact that it was a familiar part of the case deciding function as a founding generation knew it. Consider madisons recognition that the good of society requires that the rule of conduct should be certain and known. That wouldnt be the case, madison observed, if any judge disregarding the decision of his predecessors should ry the rule of law according to his individual interpretations of it, or consider 78 where hamilton decides that judges should be bound down by strict rules and precedent in order to fend off what he calls an arbitrary discussion discretion. Federalist 78 was among the sources Justice Kavanaugh cited to support his claim that the framers understood the doctrine is part of the judicial power rooted in article tee, giving it a firm constitutional basis. Even apart from that textual gument, it strikes me as a solid inference that federal judges, including Supreme Court justices may lawfully defer president as a waiter bringing continuity and coherence to the interpretation of a charter that is specific and exact in some ways but open to debate in many others. Of coue there is no fully defined doctrine hiding in the constitution anymore than there is a treasure map in the back of the declaration of independence. Instead the constitution permits federal judges to create and apply a debate about the law of precedent, which is what they been doing for years and what they continue to do toda there is a notable counterpoint to thisnderstanding. Comes from juste thomas 2019 concurrence in a case called gamble versus uned states. Drawing on scholarly work, including a brilliant article by my copanelist gary lawson, Justice Thomasescribed as inntion with the supiority of the constitution over other sources of law. He argued that the judicial power doesnt authorize the Supreme Court justice to elevate mistake and precedent over the constitution. So, rather the Supreme Court is constitutionally forbidden from deferring to predents that are demonstrably erroneous. For him, the laws only in one set of rcumstances, when the traditional tools of legal interpretaon reveal that precedent while incorrect, nevertheless adopted a permsible interpretation. The sweep of this position depends on how we define the key terms. The most salient question is what it means for a president to be demonstrably erroneous as opposed to permissible but still wrong. We need to know what confidence level eqtes to demonstrable error and why when that confidenceevel isn met, its ok for the judge to defer to precedent instead of offering his best interpretation of the law, irrespective of what was said. Weve gotomeone to do before we c put it all into practice. There another step, because the concept ofemonstrable error does not est in a vacuum. According to Justice Thomas, courts need to assess whether s demonstrable using the quote, traditional tools of legal interpretion. That is the whole ballgame. Cause it traditional tools of legal interpretation is another way of saying originalism, which seems to be thcase based on the concurrence and game versus the United States,han any nonoriginal precedent that reaches a nonoriginalist rult is guilty of demonstrable error. Which means every nonoriginal will precedent not only may be overruled, but must be overruled, no matterow deeply its entrenched and no matt how much reliance its commande it might well be that an unbren pattern of interpretation would have been the best of all possible worlds. Or nonoriginalist precedents play roles in shaping the freedom of speech, the rules of criminal procedure, the extent of federal power and beyond, w need to worry about disruption and instability of all of those are up for grabs. Plus, as i suggested, Justice Thomas structural argument for the unlawfulness ultimately has too much going against it. Heres why the history of precedent based decisionmaking, the familiarity of the founding decisionmaking, prominent founder depiction of precedent is part of the judicial process. The fact thafrom the moment of its ratification, the constitution contained a host of uncertainties that we need to be rked out and solidified your processes including judicial interpretation in the absence of any language indicating that the constitution constitution takes the step of excluding this from the judicl power or the case deciding function. I cannot help but to conclude at it has a role to play. I take part in the fact that the Supreme Court sees it that wa as well. Over the years, justices who interpret the constitution very differently om one another have found Common Ground in the legitimacy of this. That remains true up to the present, even in a landmark case like dobbs. The majority describe it not just as constitutionally legitimate, but as promoting the consistency and integrity of what judges do. The idea that over the years so many justices have been wrong about the lawfulness about this is an aggressive claim. The bar for proving that case ought to be awfully high and i dont think the text and structure of the constitutio get us there. Accepting this does not mean freezing every constitutional mistake for eternity, that is what it does with the central work. Separang the mistakes we live with from the mistakes we can. Just as generations of judges have recognized this, t same judges have recognized the validity of departing from precent underertain circumstances. Thessential steis making sure judges dont flex their overruling muscles every time they come upon a dubious opinion. Particularly if dubious refers to all opinions that reflect commitments different from ones own. So what should judges including originalist judges look at when deciding whether to revisi