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Tuesday, October 13, 2015

Originalism and precedent at the trial court level

That's the topic addressed by Orin Kerr in this older post over at the Volokh Conspiracy. Kerr makes, I think, a very interesting point in analyzing an early decision by a federal district court judge finding ObamaCare unconstitutional:
The core problem, I think, is that Supreme Court doctrine has strayed far from the original meaning of the scope of federal power granted by the Constitution. Today’s constitutional doctrine permits a scope of federal power that is much broader than the original meaning of the Commerce Clause and Necessary and Proper clause would allow. When interpreting the scope of federal power, then, you need to decide what you will follow: The original meaning or case precedents. As I read Judge Vinson’s opinion, he mixes the two. Judge Vinson jumps back and forth between purporting to apply Supreme Court precedents and purporting to interpret the Commerce Clause and Necessary and Proper clause in light of its original meaning. Judge Vinson spends about half of the legal analysis on original meaning and about half of the legal analysis on precedent, and he seems to treat both as important.
Essentially, the judge balanced precedent alongside with the original intent behind the Constitution to reach the holding in the case, that the health care reform act exceeded the scope of Congress' powers under the Commerce Clause. And while that evaluation may be substantively correct, Kerr notes that there is a problem with a trial court judge making that kind of determination:
[T]here’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.
I think Kerr is on to something here, as far as the practicalities of how trial courts are supposed to rule in light of precedent from appellate courts within the trial court's jurisdiction (and the Supreme Court's jurisdiction covers the entire country). The trial court judge is bound by those precedents and cannot disregard them, even if he or she thinks that the precedents are wrongly decided. So long as the precedents are on point to the relevant issues in the case, the judge is, as Kerr puts it, "stuck."  He or she has to follow those precedents. The judge is certainly at liberty to point out where he or she thinks the Supreme Court has gotten it wrong and why, but the trial court judge isn't free to decline to apply Supreme Court precedent. As long as that precedent stands, the trial court is bound to follow it.

Related item:  Clinical law professor William Jacobson over at Legal Insurrection provides an overview of Judge Vinson's ruling here. Well worth a read. A strong case can be made that the judge was substantively correct in his originalist analysis. The question is, was that the kind of analysis he should have been making in light of the relevant Supreme Court case law?


Tim Kowal said...

I agree if SCOTUS has considered and rejected the originalist analysis. But what if it hasn't? I.g., what if SCOTUS precedent has been established without considering the originalist analysis on the particular issue? Seems to me the district judge could properly decide the issue de novo, giving due weight to both originalism and precedent.

Tom Van Dyke said...

I remember Steve Dillard's slogan [now on the Court of Appeals of Georgia]:

Stare decisis is fo' suckas!

Which, come to think of it, is just how the left does things.

"...for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade =Stare decisis is sacrosanct!; Bowers v. Hardwick = Stare decisis is fo’ suckas!). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.

So, when Professor Kerr laments “that a world in which there was really no stare decisis at the Supreme Court . . . would be a serious mess,” my response is: “It cannot be any worse than a world in which the Supreme Court consistently ignores the plain and original meaning of the Constitution and engages in judicial policy making.”

Tim Kowal said...

In my Administrative Law exam in law school, we were asked about the policy implications of Chevron deference. I answered along the lines of: if the Congress wanted judicial efficiency, it wouldn't make so many goddamn agencies, and it ain't the court's place to muck about with our republican form of government just to make the idea work.

I get a similar twinge at stare decisis. I got no truck with developing sound legal doctrine. But the common law's pretty well built out by now, and when judges want to get a different result, they have little trouble fashioning an exception out of equity or some curiosity in the facts. There'd be little need, if courts took the generic approach in the high-profile cases as in the quotidian cases, for the anxiety and embarrassment of deviating from past cases. So the exaggerated emphasis on stare decisis suggests to me less a need for "stability" in the law -- if we wanted stability we'd go get a statute -- than the court's overarching desire to assert and maintain itself as a SOURCE of law.