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?

Originalism isn't an ideology, it's a methodology

Here's a good observation over at the Volokh Conspiracy law blog that originalism in legal theory is a method and not an ideology:  There's no originalist consensus, but that's okay. Originalism isn't about pat answers, it is an approach to thinking through issues of constitutional and legal meaning when direct guidance from the text of the law is lacking.

Judicial diligence in the defense of rights isn't the same thing as judicial activism

Libertarian legal scholar and law professor Randy Barnett makes that point in this op-ed over at The Washington Post: "Judicial engagement" is not the same as "judicial activism." Taking as his starting point an op-ed by George Will (discussed on this blog here), Barnett correctly identifies the real problem with modern liberal jurisprudence: its tendency to misinterpret the Constitution, leading to the courts striking down laws that are perfectly constitutional. Barnett then goes on to develop a distinctively libertarian approach to the role of the courts in limiting the powers of Congress and the state governments.

While I would not go nearly as far as Barnett in arguing for using vague and generalized constitutional provisions to strike down specific governmental actions under long-recognized powers to protect public health, safety and welfare, his point is well-worth consideration when evaluating various theories of judicial reasoning. There is always a risk that judges -- and politicians too, but that's another post -- will conflate their own ideas & policy preferences for the Constitution. It is precisely for that reason that judicial restraint is a key prudential aspect of judicial reasoning. However, restraint is a prudential principle -- when the clear text of the Constitution demands that the courts intervene to protect the people from the abuse of power, then the courts are duty-bound to move, and move rapidly, to protect individuals and institutions from governmental over-reach.