Recent VC comment threads suggest that some commenters at the VC admire lower courts judges who are less concerned with following Supreme Court precedent than getting the law right as they see it. Yesterday’s Washington Post highlights an example of this happening in the state court system. A few weeks ago, the Virginia Supreme Court ruled unanimously that a common law writ known as “the writ of coram nobis” could not be used to reopen convictions imposed on immigrants who were ordered deported as a result of their convictions. In a decision handed down two weeks later, Loudoun County trial judge Dean Worcester decided that he found the Supreme Court’s decision unpersuasive and announced he would not follow it.
From the Washington Post story:
Loudoun prosecutors were flabbergasted. Even the defendant’s attorney was shocked.“We respectfully disagree with the judge’s decision,” Loudoun Commonwealth’s Attorney James E. Plowman said. “We were under the impression that the Supreme Court was extremely clear in its ruling.”
Defense attorney Rob Robertson was surprised to win a case the Supreme Court had apparently declared he should lose, but he said, “It is very refreshing to see that there are judges in the commonwealth who are not going to let a constitutional violation stand.”
Simon says:
West Virginia trial judges are elected, I infer.
February 7, 2011, 2:03 pmloki13 says:
OK,
I’m not sure you understand the reasoning. This doesn’t have to do with the Constitution. As everyone knows, the Constitution has only one meaning, and that’s simple to understand, and it’s exactly what the Framers told us it would be. Anything the Supreme Court has said that violates the one true meaning is incorrect, and judges (who have sworn an oath to uphold the Constitution and the one true meaning of it) are compelled to follow the Constitution.
While others might argue that there is a problem with some liberal judges (like Reinhadt) having “differing” visions of the Constitution, this isn’t really a problem. Because there’s only one meaning.
Also, something about humpty dumpty. :)
February 7, 2011, 2:05 pmloki13 says:
PS-
This principle only applies in cases that are important. Like same-sex marriage, or commerce clause cases. It doesn’t apply to boring ol’ cases like this one.
February 7, 2011, 2:06 pmSimon says:
Virginian, that is. Sorry.
February 7, 2011, 2:07 pmJardinero1 says:
I kinda like the idea of being able to appeal to a lower court. Actually, cops and prosecuters get to pick and choose which laws they want to enforce, why shouldn’t judges enjoy the same perq? Here’s a really crazy thought: maybe juries might start issuing convictions on laws which they consionably feel ought to be enforced.
February 7, 2011, 2:09 pmCalderon says:
1. This is the worst decision since Dred Scott, and the judge is the reincarnation of Hitler.
(The preceding is an “inside” joke for the VC commentariat, and of course does not reflect my true beliefs)
2. I did like on page 4 how the judge took a test on when horizontal stare decisis should apply, and used it to ignore vertical stare decisis.
3. The decision is cute and all that, but seriously, what’s the point? The judge is going to get reversed, the defendant is still going to have the conviction, and the defendant still is going to be deported. I guess the decision buys the defendant the additional time of the appeals process …
February 7, 2011, 2:11 pmRichard Riley says:
Simon, unlike in many states, trial judges in VA are NOT popularly elected or even subject to periodic reconfirmation elections. Judges in VA are appointed (to fixed terms, not for life) by the state legislature – an unusual procedure.
February 7, 2011, 2:13 pmPJ says:
It is disturbing that you attempt this tangential attack on Judge Vinson and his ACA decision.
As Vinson clearly stated, in his view, the attempted regulation of inactivity, as opposed to activity, and the mandate to purchase a product from a private company every day of your life as a condition of living in America, contained in the ACA, is a new issue never before reached by SCOTUS, and to cast that as ‘disregarding his role as a Judge’, or ‘ignoring SCOTUS precedent’ is disengenuous at best.
February 7, 2011, 2:16 pmdave h says:
A hypo for Orin (and any other who would like to answer) – You are a lower court judge, and your superior court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?
February 7, 2011, 2:17 pmAnderson says:
It is disturbing that you attempt this tangential attack on Judge Vinson and his ACA decision.
???
I suppose I can’t argue with PJ if he claims to be disturbed, but excepting him, I don’t see how anything in Prof. Kerr’s post could be “disturbing” to anyone.
It is left to you to enforce this. What do you do?
“Affirmed, but criticized”?
February 7, 2011, 2:24 pmSimon says:
Richard, thanks. My remark was partially tongue-in-cheek; my intuition is that such acts of are more likely (though not exclusively, as this case shows) the province of the elected.
February 7, 2011, 2:27 pmNo Theory of Jurisprudence says:
As there has never been a Supreme Court decision striking down commerce-clause legislation on the basis that the law regulated inactivity, perhaps District Judge Vinson should have exercised a little restraint, given that SCOTUS precedents deferring to Congress significantly outnumber reversals.
February 7, 2011, 2:28 pmloki13 says:
A hypo for dave h:
A superior court hands down a ruling explicitly telling you that the executive branch cannot curtail a private citizen’s free speech rights. This is left to you to be enforced, even though the 1st Am. reads, “Congress shall make no law…” What do you do?
A superior court hands down a ruling explicitly telling you that the equal protection clause applies to the Federal Government, even though you know the 14th Am. only applies to the states. What do you do?
Shall I keep going on? :)
February 7, 2011, 2:30 pmJay says:
I would tend to think the exact opposite — acts of kindness towards criminal defendants are not typically the province of elected state trial judges.
February 7, 2011, 2:30 pmNo Theory of Jurisprudence says:
The manly judge resigns in protest.
February 7, 2011, 2:31 pmOrenWithAnE says:
Even on a new issue never before reached by the Court, the lower courts have an obligation to faithfully apply existing doctrine to the novel situation.
Either uphold the ruling or, if the situation is truly grave, resign in protest.
February 7, 2011, 2:31 pmAnderson says:
Also, what is a “writ of coram vobis”?
February 7, 2011, 2:33 pmMichael says:
With all due respect Professor Kerr, most of your detractors found your underlying argument—that Supreme Court precedent required Judge Vinson to uphold ObamaCare’s mandate—to be unconvincing. Your failure to persaude on this point does not mean that most commenters believe lower courts should disregard precedent in favor of original understanding. It simply means that your interpretation of case law that never considered Congress’s power to enact individual mandates was considered and rejected.
February 7, 2011, 2:33 pmAngus says:
Orin said nothing about Vinson or his decision in this post. That you immediately thought about Vinson shows that even you think that “lower courts judges who are less concerned with following Supreme Court precedent than getting the law right as they see it” applies to Vinson’s handling of the case. You just like the result, so you’ll still defend it/him.
February 7, 2011, 2:34 pmOrin Kerr says:
Dave H asks a hypo:
I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.
February 7, 2011, 2:36 pmChrisTS says:
coram nobis: in our presence? No idea what the writ is about.
February 7, 2011, 2:38 pmB.D. says:
Definitely inappropriate.
Sometimes a higher court will end up adopting a lower court’s decision that plainly conflicted with the higher court’s precedent. And in those cases, the higher court should still reprimand the lower court.
February 7, 2011, 2:41 pmGerbilsbite says:
“That sergeant will be a private in the morning.”
February 7, 2011, 2:41 pm“Yes…isn’t he lucky?”
dave h says:
Certainly there are situations where one could disagree with a superior court decision but not find it to be clearly in error. My hypo was intended to ask whether it is even theoretically possible for a decision to be so in error that you would not follow it.
Follow-up – if the lawful choices are follow the precedent or resign, does that mean that those are the only two acceptable choices?
February 7, 2011, 2:42 pmB.D. says:
Basically, vacating a conviction when habeas is no longer available (like when you’re out of prison already). At least in the criminal law context that’s what it means.
February 7, 2011, 2:42 pmWilliam says:
I would uphold the precedent. If someone wanted to appeal my decision further, the Supreme Court would then have the oppotunity to review their own precedent and decide whether or not is was right to establish it in the first place.
There are two perfectly good existing means for overturning bad Supreme Court precedent: new Supreme Court Precedent and constitutional amendments. A bad precedent is no excuse to do violence to the whole system by opposing it in the lower courts. If such a thing were possible, then all kinds of people with various motivations (from pro-lifers to pro-gay-marriagers to pro-seccesionists) would use the ability of lower judges to oppose higher ones to wreck our nation.
February 7, 2011, 2:42 pmAnon21 says:
Probably write an opinion succinctly explaining, why, in my view, the superior court has erred (if erred it has–of course, if it’s a state court, and this is a state soldier, it may not have), and then reach the result compelled by the superior court’s holding.
February 7, 2011, 2:45 pmNo Theory of Jurisprudence says:
No, a third option would be to reverse the Supreme Court, and then use a bazooka to fend off advances by State or Federal troops. Wait, what do you mean by “acceptable” if not “lawful”? Another choice would be to get loaded and hope the problem goes away.
As I said, I think the only manly option is to resign in protest.
February 7, 2011, 2:49 pmjosh says:
Anderson, you are a westlaw nerd
February 7, 2011, 2:50 pmjosh says:
Based on Daveh and loki’s comments, I think this is going to be a fun thread to watch today.
February 7, 2011, 2:57 pmFloridan says:
Or on laws that haven’t been written yet.
February 7, 2011, 3:02 pmDavid M. Nieporent says:
Orin hasn’t spent enough time in trial court. There’s another option: just sit on the case and never issue any decision at all, and when the parties call to ask what’s going on, instruct your clerk to tell them that it’s on the judge’s desk and he’s sure you’ll get to it soon.
Or, at least, I’m pretty sure that judges believe this is lawful.
February 7, 2011, 3:02 pmGerbilsbite says:
OPINION OF GERBILSBITE, J.:
The Constitution’s text plainly and unequivocally prohibits the state’s conduct in this case. It’s incomprehensible that anyone could think otherwise. No person with half a brain or a modicum of sense could believe this conduct is permissible. Only a dimwitted, drooling imbecile could endorse the state’s reasoning. Nobody who agrees with the state’s conduct has any business coming within fifty feet of any position of authority, or within sight of a courthouse. I feel nothing but pity and scorn for those of such low intellect as to believe that a court should ever, EVER rule for the state in such a case as this.
Bound on the exceptionally silly precedent governing this district and the instructions from the appellate court, and with the utmost regret, I rule for the state.
February 7, 2011, 3:03 pmjink says:
Is it just me, or does it seem as if Orin has been pouting since judge Vinson’s decision? I don’t care much either way about his decision (I figure it will be sorted out eventually) but I find it a little demeaning for someone who’s obviously intelligent and normally mature to seem so affected by a judges ruling. It seems as if he is looking at everything through a Vinson-Prism.
February 7, 2011, 3:03 pmRe-reading his post, it actually seems he is more perturbed by commenters agreeing with the decision than the decision itself. Common Orin, it’s just internet comments! Don’t take it so hard.
OrenWithAnE says:
Pretty much. If things have gotten sufficiently bad, you are also entitled to take up arms to alter or abolish that government (although the usual caveat about not abolishing governments for light and transient causes applies).
February 7, 2011, 3:03 pmloki13 says:
That’s begs the question though. What is absolutely clear to one person is not so clear to others. Both the hypos I pose to you actually have adherents (and, in fact, I have seen a few decisions that refuse to apply the EPC to the Federal government). As we can see in the commerce clause debate, it is 100% clear to some people that the mandate is constitutional, and 100% clear to others that it is not.
The job of lower court judges is not to decide based upon what is 100% clear to *them* based on their own understandings. It is to apply the law. In our system, that means to apply precedent to the facts. You don’t give enough information in your hypothetical as to why the example is so clearly wrong.
But a judge would have the following options:
February 7, 2011, 3:03 pm1. Show that the precedent, as applied to the facts in the instant case, compels a different result. (Distinguishing)
2. Follow the precedent. Perhaps write an opinion explaining why they thought the precedent was wrong.
3. Get good and liquored up, then resign. (Liquor is optional)
Passing By says:
It is a bit confusing.
The defendant in Loudon County has a colorable claim that his Sixth Amendment rights were violated by ineffective assistance of counsel. He now faces dire consequences due directly to that violation … consequences which he apparently had no way to discover within the time limits of Virginia’s appeal process.
I accept the Virginia Supreme Court’s authoritative view of Virginia practice, that neither a coram vobis motion nor an audita querela motion is the appropriate path to relief.
Query–What path should the defendant have taken? If there is none, then does he have a right without a remedy?
February 7, 2011, 3:05 pmMarcus says:
I wasn’t aware we practiced the quartering of people any more? Is it still done with horses? And would the individual be within the bounds of the order if the soldier was quartered in the back yard, rather than the inside the dwelling? I mean, think of the mess.
February 7, 2011, 3:07 pmUrso says:
The third, and I think most common, option is to somehow, anyhow, find some legal or factual quibble to distinguish the SC precedent. Then hope the court of appeal buys it and the SC doesn’t grant writs.
The stark reality is that there are literally thousands of lower court opinions that conflict directly with opinions that should be binding precedent. Sometimes the court just misses the precedent, and the parties don’t bring it to the judge’s attention. Sometimes the judge knows damn well what he’s doing.
February 7, 2011, 3:09 pmGuy says:
Explain that the parties are bound by the judgment of a court which has appellate jurisdiction over me, and legal error is not a sufficient basis for disregarding that.
February 7, 2011, 3:09 pmAnon21 says:
Yeah.
February 7, 2011, 3:13 pmJoe says:
The judge quotes the VA Supreme Court making an exception to following precedent when “we” (the VA Supreme Court) hold it not binding for such and such reason (see opinion). He uses this to not follow precedent of a higher court based on personal disagreement. Not quite sure that is what they meant.
February 7, 2011, 3:17 pmloki13 says:
Not to speak for OK, but I know that I had the following reaction:
1. Total lack of surprise at the merits of the decision. (Anyone who is familiar with this area in the 11th knew it was a near fait accompli).
2. A fair amount of surprise at the reasoning of the decision.
3. A huge amount of surprise at the number of people who suddenly felt that judges should be unconstrained by precedent. While that’s a wonderful thing to say for a particular case, it really does shame to the big picture. Would they feel the same way if liberal judges began ruling case after case that corporations are not people and have no constitutional protections? (Yes, it would get cleared up on appeal, but what a mess it would make in the meantime) Precedent does many things, and it protects reliance interests in more than just today’s “super important case that all of civilization depends on!”
(None of this is about the legal reasoning in Vinson’s opinion. But… c’mon. Lower judges feeling free to ignore vertical stare decisis is not a good idea.)
February 7, 2011, 3:18 pmShelbyC says:
Technically in the hypo the ruling isn’t precedent. But wrt to following precedent, the judge has to determine the degree to which the law requires him to follow precedent, and that law is whatever he says it is, no?
February 7, 2011, 3:24 pmtarpon says:
Destroy the rule of written law, you destroy civil society. Just ask Obozo.
February 7, 2011, 3:27 pmMarcus says:
“Would they feel the same way if liberal judges began ruling case after case that corporations are not people and have no constitutional protections?”
I’m not sure I see the downside? We have already heard here at the VC that corporations have zero obligations to anyone other than Max Profit and his Merry Shareholders. If that is not an argument for the revocation of personhood for corporations, I have no idea what an argument for the revocation of personhood for corporations would look like.
February 7, 2011, 3:29 pmMarcus says:
Yes, that day Obama erased all written laws and civil society collapsed was a rough one. We got better, though.
February 7, 2011, 3:30 pmepeeist says:
dave h gives a good example. I note that by contrast, a member of the military is generally NOT able to just resign/leave, but is instead expected to refuse to follow an illegal order (which in a sense is what this judge, assuming he had honest intentions, was doing)…
From what I recall of morality, ethics and the law (that I agree with!) and applying it, following the binding precedent or resigning (possibly after refusing to follow the precedent?) seem the two acceptable approaches to most judges or lawyers when working within a legal system which is generally reasonably fair.
There may be additional “acceptable” options to some if one is in a horribly evil and unfair legal system like nazi germany or something, but even there some feel one should resign rather than make morally correct (but legally wrong) judgments.
One thing I don’t understand; if the law (based on the Va. Supreme Court) was that clear-cut and incapable of being distinguished, then what was the matter doing in court with a defence attorney? Was it perhaps distinguishable on some facts but the judge instead refused to follow stare decisis?
February 7, 2011, 3:34 pmkrs says:
From Black’s Law Dictionary:
From the first page of Google hits:
February 7, 2011, 3:40 pmjames says:
He turned me into a (newt)Tea Party-er!
February 7, 2011, 3:41 pmGuy says:
Up until the superior court issues a writ of mandamus and sends a marshal with a gun to enforce it.
February 7, 2011, 3:42 pmRichard Riley says:
I personally agree with Prof. Kerr on the need for lower court judges to follow precedent rather than their own view of Constitutional first principles, but I am not sure the VA case he describes presents that issue. Sounds like the Loudoun judge wasn’t ignoring precedent – he was ignoring the appellate court’s decision in the very same case.
Wouldn’t that be more like, if Judge Vinson gets reversed by the 11th Circuit, the Supreme Court takes a pass on this particular vehicle to address PPACA, and the case is remanded to Vinson to implement the 11th Circuit’s mandate – and he STILL says PPACA is unconstitutional despite what the 11th Circuit has to say? That sounds more like the VA situation described by Prof. Kerr.
I guess some VC commenters would insist Vinson has the obligation to follow what he truly thinks the Constitution “really” requires, even in the face of a direct reversal by his appellate court – but that sure would not foster a workable court system.
February 7, 2011, 3:43 pmkrs says:
This seems to me to be where the court went off the rails, unless there’s something about the way Virginia courts work that makes this permissible. At page 4, the court says this:
This seems to me to be entirely misguided. Lower courts don’t have to agree with or like the decisions of higher courts, but as far as I can tell, they have to follow them.
February 7, 2011, 3:48 pmOrin Kerr says:
Jink:
?
February 7, 2011, 3:57 pmCalderon says:
Sorry krs, I should have been more clear that I was not being serious in my use of the term “like” when describing the portion of the court’s opinion on stare decisis. Of course, using a test for horizontal stare decisis (used to overrule a court’s own opinions) cannot apply to vertical stare decisis (overruling a higher court’s opinions). The discussion by the opinion here is … interesting in that he’s giving a legal justification for what he’s doing, but one that is so patently wrong that neither he nor anyone else could believe it provides a leigitimate basis for the decision, so I wonder why he bothers (though I wonder that about the entire decision).
February 7, 2011, 3:57 pmShelbyC says:
Well, if a superior court issue a writ of mandamus ordering a lower court to follow precedent (as opposed to following it’s orders in the same case) I think you’d have a real problem, primarily because a judge is perfectly entitled to rule on when/what precedent he is required to follow.
February 7, 2011, 4:01 pmwumhenry says:
Sarcasm noted. Of course, most of the Constitution’s provisions do have a plain literal meaning that was self-evident in 1792 and still is today. No one, with the possible exception of a few pedants who think that “stare decisis” refers to a supreme moral imperative that trumps oaths of office, would agree that this plain meaning is hostage to judicial whim. If a SCOTUS majority were to hold that a Senate majority can impeach the Speaker of the House, notwithstanding that Article 1, Section 2 says that “the House of Representatives shall chuse their Speaker and other Officers and shall have the sole power of impeachment,” no one (aside from pigheaded pedants) would conclude that the Supreme Court, in issuing that opinion, had changed the meaning of that Constitutional provision. Rather, everyone with a properly functioning faculty of common sense would agree that the SCOTUS opinion was erroneous. It logically follows from this commonsensical perception that an oath to uphold the U.S. Constitution would requires an oath-taker dealing with a similar case to give effect to the Constitutional provision’s plain literal meaning rather than defer to a preposterous SCOTUS opinion. You may say that my hypothetical is far-fetched, and of course it is, but I submit that it exposes a fundamental flaw in the notion that inferior judges are always obliged to decide Constitutional questions consistently with SCOTUS precedent, no matter what their own opinion may be.
February 7, 2011, 4:09 pmkrs says:
I didn’t think you were serious, though I can see how my comment may have given a different impression. I tend to presume that the judge here was acting in good faith. If that’s correct, then–as I think you’d agree and as I thought you were pointing out–the opinion goes off the rails where he applies horizontal stare decisis law to a vertical stare decisis question.
February 7, 2011, 4:09 pmGuy says:
I was taking the argument to its logical conclusion, the lower court simply ignores clearly binding precedent, the higher court reverses, he determines the law doesn’t require him to be bound to the superior courts reversal, etc.
More seriously, the system primarily relies on hegemonic compliance with the system out of respect for the rule of law, if that breaks down, you need physical force, if that fails, you have a Constitutional crisis. But speaking of the law “objectively”, I’m not aware that a court can ignore vertical stare decisis. Though it’s usually not too hard to distinguish the case on a basis that is at least not so flimsy as to fail to provide cover for the position that it was a good faith decision. I think it’s fair to say a lower court errs when it claims the power to overrule a superior court.
February 7, 2011, 4:10 pmarbitrary aardvark says:
here it looks like the lower court found a conflict between a federal scotus precedent, on a constitutional issue, and a state court decision on a procedural issue. ruling either way would violate precedent. he here could rely on the supremacy clause to argue that the scotus ruling is more binding. it’s also a shout-out to the legislature do something,and to the executive that deportation is inappropriate here, and might violate due process.
the state decision was about coram nobis; this case is about corum vobis, so they are legally distinguishable. it’s splitting hairs, but that’s something judges do.
i’ve run across this kind of tension myself. scotus has said, in talley and mcintyre, that anonymous political speech is constitutionally protected. my state supreme court, in dicta in one of my cases, has said that a ban on anonymous political speech is perfectly cromulent. so what should a lower state court do, follow the state or the feds?
February 7, 2011, 4:11 pmjink says:
I was talking about this line, and generally how you seem to be so put out that there are some people that don’t agree with your take on the Vinson decision. Agree or disagree, but I think you can see that there wasn’t a clear cut precedent that he overturned. Otherwise why so much disagreement by smart people on whether his decision will stand? You think he decided wrongly. Some commenters think he decided correctly. It seems to me that this really bothers you – and more than in an intellectual way. “Under your skin” , if you will…
February 7, 2011, 4:17 pmMichael Ejercito says:
What commenter made this argument?
February 7, 2011, 4:24 pmDan Hamilton says:
“3. Get good and liquored up, then resign. (Liquor is optional)”
And thus leave the field to those you believe are misusing the Law. Sounds like a really good way to force all but one side out of the Judge business. Making sure -
” things
February 7, 2011, 4:25 pmhave gottenwill get sufficiently bad, youare also entitled totake up arms to alter or abolish that government (although the usual caveat about not abolishing governments for light and transient causes applies).Orin Kerr says:
Jink,
Your two comments appear contradictory, and I’m not sure which one I should respond to. In the first comment, you say “it’s just internet commenters” who shouldn’t be taken seriously, in the second, you say that internet commenters are smart people who must be taken seriously. I’m curious, which argument are you making?
February 7, 2011, 4:26 pmloki13 says:
[Rest omitted for space]
Nope. That, of course, is the crucial distinguishing feature. Note the use of your phrase “self-evident.” I also see the use of the adverb “obviously” in these situations a lot.
What is self-evidently clear to you is not self-evidently clear to others. Words and meaning change over time. Things that we accept as common (such as our First Amendment freedoms) are not “self-evident” from the text, and have varying degrees of obviousness to different people. Other things (such as the EPC applying to the federal government via reverse incorporation through the 5th Am. due process clause) are clearly not self-evident, yet (fairly) well accepted.
It is certainly not “obvioius” that corporations should receive any constitutional protections under the Constitution, and to many people, it might be “self-evident” that they do not. Would you be comfortable if judges ruled on the basis of this obviousness, ignoring all of the case law and reliance interests? See also Moral Certainty v. Self-evidence, 543 F.3d 689, 698 (2011) (Scalia, J., dissenting) (“What idiot out of the Ninth Circuit took it upon themselves to ignore over a century of case law and start deciding things based upon how “self-evident” it felt, and their empathetic understanding of the words of the Constitution, combined with a 1792 copy of Webster’s?”)
February 7, 2011, 4:26 pmBorealis says:
This judge is destined for the US Court of Appeals for the Ninth Circuit!
February 7, 2011, 4:27 pmAnderson says:
Thanks, krs; I was just being a smartass, never having heard of coram vobis, just coram nobis.
Learned something today; I can go home now.
February 7, 2011, 4:27 pmAnderson says:
I’m curious, which argument are you making?
Apparently, the former.
February 7, 2011, 4:29 pmjink says:
It’s not that you are taking them seriously, but that you seem to have become a bit snarky over the whole thing. It seems as if you saw the Virginia decision and said “aha, this will show those commenters!” I generally enjoy reading your posts, and I’m halfway in agreement with you on the Vinson decision, but it seems as if this is going to color your future posts in the near future.
February 7, 2011, 4:32 pmloki13 says:
When I worked as a clerk, it was my experience that the best judges were the most humble ones. Good judging is often an act of humility, not of hubris. In common law, we stand on the shoulders of giants. Is it possible that *you* the trial court judge, has the law 100% correct and those idiots at SCOTUS and the CoA (or their state court equivalents) have just gotten the law wrong? Sure. And you cna even write a little bit explaining your position.
But perhaps some other thought has gone into it. Perhaps there’s been a case… or two… or thousands… that have acted to create that default rule. Maybe there’s a reason for it.
February 7, 2011, 4:33 pmGeoffB says:
This may be a naive question, but it seems like Supreme Courts have overruled their predecessors’ judgments in a number of cases. How could such a prior precedent reach a Supreme Court to be overruled, if a lower court didn’t substantively disagree with that prior precedent in its decision?
I suspect this case may be unusual given the length of time that passed prior to the disagreement, but qualitatively I’d assume it to be analogous.
February 7, 2011, 4:34 pmAnderson says:
How could such a prior precedent reach a Supreme Court to be overruled, if a lower court didn’t substantively disagree with that prior precedent in its decision?
The lower court can rule in line with precedent and then that precedent be reversed, perhaps to the chagrin of the lower court.
February 7, 2011, 4:38 pmShelbyC says:
Sure, but on of the things I find interesting is that the only thing that says vertical stare decisis is binding is vertical stare decisis itself. AFAIK there’s nothing in the Constitution or any other law that requires judges to follow the precedents of higher courts (as opposed to their rulings on specific cases). So it would seem perfectly legit for a judge to rule that vertical stare decisis didn’t apply, as opposed to a judge ruling, say, that the supreme court didn’t have appellate jurisdiction over is case.
February 7, 2011, 4:39 pmjink says:
As a somewhat disinterested layman, and seeing arguments that supporters and detractors of the decision make, it doesn’t seem a clear cut bad decision. ‘Iffy’ maybe. But in any case, it seems to me that before his decision came out 40% of the population was probably hard-wired to agree or disagree with it. Orin has talked about that aspect of it in previous posts. But even among the ‘disinterested’ it seems there isn’t a clear certainty that his ruling would be overturned. If it were OBVIOUSLY wrong, then there wouldn’t be such uncertainty.
I also find some of the supporters of the rulings arguments lacking. The “obamacare will be the end of freedom and mark the beginning of unlimited congressional powers” argument. If ‘the People’ ever decided with any near concensus that they didn’t want congress to do something, they could easily stop it (see egypt.) The thing is, ‘the People’ are split, and/or ambivalent about whether congress is overreaching. Heck, if ‘the People’ really really wanted to, we could abolish the supreme court, or amend the constitution to VERY CLEARLY neuter the federal government…
February 7, 2011, 4:41 pmloki13 says:
Sure. Only if you assert that the Framers didn’t grow up in a system surrounded by common law, or that they were unaware of the principles (or the text) of Blackstone’s commentaries, or that when they wrote Art. III, they envisioned a court system that was completely different than the one they were used to, and were depending on the emenations and penumbras of Article III that imply that vertical stare decisis just ain’t a part of it.
It’s not like the Framers were lawyers. Oh… wait.
(Okay, I have to turn my snark off today. I blame… society. That and a motion.)
February 7, 2011, 4:43 pmKazinski says:
February 7, 2011, 4:44 pmjink says:
Loki13,
As a somewhat disinterested layman, and seeing arguments that supporters and detractors of the decision make, it doesn’t seem a clear cut bad decision. ‘Iffy’ maybe. But in any case, it seems to me that before his decision came out 40% of the population was probably hard-wired to agree or disagree with it. Orin has talked about that aspect of it in previous posts. But even among the ‘disinterested’ it seems there isn’t a clear certainty that his ruling would be overturned. If it were OBVIOUSLY wrong, then there wouldn’t be such uncertainty.
I also find some of the supporters of the rulings arguments lacking. The “obamacare will be the end of freedom and mark the beginning of unlimited congressional powers” argument. If ‘the People’ ever decided with any near concensus that they didn’t want congress to do something, they could easily stop it (see egypt.) The thing is, ‘the People’ are split, and/or ambivalent about whether congress is overreaching. Heck, if ‘the People’ really really wanted to, we could abolish the supreme court, or amend the constitution to VERY CLEARLY neuter the federal government…
February 7, 2011, 4:44 pmjink says:
Orin, I just think the snarkiness is unbecoming. This (viginia) case doesn’t really have anything to do with the Vinson decision. It seems more like you are just saying “Ha! How do you like these apples?” to the people who disagree with you.
February 7, 2011, 4:47 pmloki13 says:
Final thought-
So, what we know today is this:
The Framers knew that when they were writing the Constitution, they completely thought that we would be looking to the Federalist Papers (you know, some propaganda to get the Constitution ratified in New York) to find dispositive answers to all of our legal questions today, realizing that over two hundred years later we would solve our political problems by seance;
and yet they had no clue that the court systems would use vertical stare decisis. Because they told us how to interpret the Constitution explicitly (?), but didn’t make an explicit mention of vertical stare decisis, and originalism is part of common law that they grew up with (?) and vertical stare decisis isn’t.
*sigh*
(Again, I’m not trying to slam originalism too much, although I’m a textualist, but… really?)
February 7, 2011, 4:49 pmJay says:
It wasn’t the very same case, though, just the same issue.
February 7, 2011, 4:51 pmdave h says:
My point isn’t to determine when a decision is so clearly in error that it can be disregarded – of course in real cases that is much more difficult than in my hypo. I chose an example that 1) was absolutely explicit that it was against the plain meaning of the constitution and 2) was not something that would get everyone’s emotions up (unless you once had to quarter a soldier to disastrous results).
What strikes me is that people (lawyers?) believe that the law is the end, not the mean. That no matter how ridiculous the result of the system is, it cannot be questioned. At best you can resign in protest, and allow an unprincipled replacement to carry out the same order. This is the fundamental problem to me: that no matter how much the system becomes unhinged from serving the underlying purpose it must be followed. Is the law the master or the servant?
February 7, 2011, 4:52 pmU.Va. Grad says:
I am reminded of the first time we discussed Article III in my Con Law class, and someone down in front raised his hand to ask why, if the judicial power extends to “to all Cases affecting . . . public Ministers,” the federal courts don’t automatically have jurisdiction over any case involving a military chaplain.
February 7, 2011, 4:54 pmloki13 says:
As someone who enjoys a good commerce clause conversation (although, alas, not on these boards), I’ve enjoyed the cases.
Before the decision came out, I knew Vinson would rule against PPACA. I won a few dinners out of that. :)
What surprised me was the nature of his ruling. I mentioned this previously- the severability surprised me a little. But what surprised me more than anything was the rhetoric, the poor distinguishing, the first principles analysis, the citations to some iffy sources, and, um, the rhetoric. The 11th is a hospitable CoA for opponents. Had Vinson done a better job and penned a less inflammatory opinion, he would have made their jobs easier. He made their jobs harder. That surprised me. His opinion was more for public consumption than the CoA. Which was unfortunate.
In other words, I think his opinion slightly lowered opponents’ chances with the 11th. Not a great deal (it’s still a legal issue, and many judges will have jurisprudential biases). But instead of helping, he actually hurt.
(The best dagger is seldom the loudest one.)
February 7, 2011, 4:55 pmAnderson says:
AFAIK there’s nothing in the Constitution or any other law that requires judges to follow the precedents of higher courts
Or that says my cat can’t be Chief Justice.
February 7, 2011, 4:57 pmjink says:
Orin, what I was trying to point out was that this seems a little on the ‘snarky’ side. This case doesn’t have anything to do with the Vinson decision, but rather it’s like you saying “Ha! How do you like these apples you idiots that disagree with me!” Can you say with 100% certainty that Vinson will be reversed? You seem to think it’s clear cut, but there seems to be quite a few people (not counting ‘fans’ of the decision) who aren’t certain of the final outcome of this. I enjoyed reading your posts on why you disagree with the decision, but this particular post seems beneath you.
February 7, 2011, 4:58 pmSTANLEY NEUSTADTER says:
Jury nullification is problematic enough. We certainly don’t need judicial nullification.
February 7, 2011, 5:01 pmShelbyC says:
Do you have and evidence that anybody from the founding era, including Blackstone, viewed vertical stare decisis as more binding than horizontal? I admit I’m not an expert, but if you have evidence I’d love to see it. I know Blackstone said, “Precedents and rules must be followed, unless flatly absurd and unjust”. Presumably Blackstone felt a court could decline to follow a precedent that was flatly absurd or unjust, which is of course the opposite of the view that is expressed by most commenters above.
February 7, 2011, 5:04 pmloki13 says:
dave h,
The problem with your hypo is that it doesn’t work as a hypo (for people that are lawyers). The law is notoriously fact-specific. And procedure matters. Why is a superior court “handing down” to a lower court an order to allow a soldier be quartered. Why is the manner explicitly not allowed by law (is that a normative judgment)? Are we in a war now? Is the soldier part of a state unit (national guard) and if so, is the Third Amendment incorporated (only one case, out of NY, stating it is). What other remedies have been sought? Is this an action for an equitable remedy or money damages for a constitutional violation? Against whom? And so on.
The law is what it is- a system. Our common law adversarial system has many faults, but I’m not sure what you’d prefer. Dictatorship of like-minded guardian/judges?
February 7, 2011, 5:07 pmOrenWithAnE says:
I note that by contrast, a member of the military is generally NOT able to just resign/leave, but is instead expected to refuse to follow an illegal orderDepends on whether they have a commission or not.Irrelevant. The Supreme Court can be entirely erroneous and the lower court judge still has to follow it (grudgingly) or resign. That’s what it means to be an inferior tribunal.
Because clearly we are going to overthrow the government over this writ, SSM or the individual mandate. That’s why the caveat about not overturning governments for transient causes is there — to make it clear that the right to alter or abolish the government is an extraordinary remedy reserves for extraordinary circumstances.
It’s not that it cannot be questioned it’s that the proper venue for that questioning is not in a lower court.
February 7, 2011, 5:10 pmkrs says:
I’d never heard of coram vobis either. My sarcasm meter appears to be malfunctioning today.
February 7, 2011, 5:10 pmNo Theory of Jurisprudence says:
We have two principles: 1) Congress may only regulate activities, 2) SCOTUS defers to Congress if there is a rational basis for doing so. The former has never formed the basis of any decision in the history of the Court. The latter has.
Judge Vinson has a very creative rejoinder to this. He invokes an accepted constitutional concept (enumerated powers are by definition limited) and uses activity/inactivity as a means to achieve limited powers, because activity/inactivity provides precisely the limit on Federal powers that Vinson wants. He bolsters this argument by suggesting that the Founders would not have had it any other way, which no one can dispute, for the reason that the Founders are dead and, indeed, they probably would not have passed Obamacare, because they likely disagree politically with the people holding a majority of Congress when ACA was passed.
Even assuming for the sake of argument that Judge Vinson’s novel activity/inactivity distinction is an existing Constitutional principle, shouldn’t it still yield to the rational-basis test, just like the “substantially affects interstate commerce” test?
February 7, 2011, 5:11 pmRichard Riley says:
Jay, thanks for that clarification. (Should have read closer.) That definitely makes it more like the individual mandate cases.
February 7, 2011, 5:12 pmKazinski says:
That is Orin’s argument more or less:
And he obviously is not a supporter of Judge Vinson’s ruling.
That was Charles Lane’s observation, I don’t think he took a position on the ruling in his column:
Of course Conservatives don’t think Congress should be that powerful, neither do progressives. But they are ready to jettison the constitution to achieve their policy aims.
Back in the late 40′s Britain’s labor party asserted the need to assign people to professions in order to regulate the economy and alleviate labor shortages, the proposal failed because Britain decided, at that time, they were still a free country. I wonder if this expanded view of the commerce clause and individual mandates would allow Congress to do that here?
February 7, 2011, 5:13 pmloki13 says:
Sure. The earliest view of common law was that we were seeking out the Platonic ideal of the law, and that decisions were a declaratory function of that Platonic idea (weak stare decisis). By the 18th century and Blackstone, we had the emergence of a stronger stare decisis. See 1 COMMENTARIES *69 “”For it is an established rule to abide by former precedents, where the same points come again in litigation . . . .”
For a more comprehensive justification,
Id.
This belief is echoed by (ahem) Alexander Hamilton within a few years:
“To avoid an arbitrary discretion in the courts it is indispensable that [judges] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” FEDERALIST No. 78 at 471
Shall I continue, or is this sufficient evidence? You can look to the Anti-Federalists (concern that there was insufficient precedent to bind the courts for the first few years) and so on…
February 7, 2011, 5:17 pmGMason says:
I was present at the oral arguments before the Virginia Supreme Court which the judge cited and has decided not to follow (Commonwealth v. Morris). The question to me is, which court does the judge follow, the Virginia Supreme Court or the United States Supreme court in Padilla v. Kentucky? The Virginia Supreme court has effectively extinguished any remedy for a wrong that the U.S. Supreme court says individuals have a right to in cases like this. The Virginia Supreme court doesn’t have a good track record when its cases are appealed to the U.S. Supreme Court (See Virginia v. Moore, 553 U.S. 164 (2008),Virginia v. Hicks, 539 U.S. 113 (2003), Virginia v. Black, 538 U.S. 343 (2003), Atkins v. Virginia, 536 U.S. 304 (2002), etc. etc.). The attorney in Morris said she is probably going to appeal the case, so we will find out who is right.
February 7, 2011, 5:18 pmGoneWithTheWind says:
Impeach the judge!
February 7, 2011, 5:20 pmSarcastro says:
Because clearly Americans have decided they are no longer a free country! I mean, everyone was calling Obama a socialist, so that must be what the people want!
Save us Constitution, you’re our only hope!!
February 7, 2011, 5:21 pmKazinski says:
But you ignore the fact that Judge Sheeh in his ruling upholding Obamacare also implicitly said that Congress could only regulate activity. His ruling decided that the “decision” of not buying health insurance was an activity, thus allowing Congress to regulate that “activity”.
February 7, 2011, 5:23 pmShelbyC says:
If you could provide examples that highlight the difference between vertical and horizontal stare decisis, that would be great. From you quotes above, I don’t see why what the judge here did was any different than if the Virgina Supreme Court had overruled itself two weeks later.
February 7, 2011, 5:23 pmKazinski says:
As it ever was.
February 7, 2011, 5:24 pmjink says:
This was the point I was trying to make. I have faith that if Obamacare will cause as much unhappiness as it seems it will, that it will go away no matter what the courts say. Since no one seems to like it (including supporters of socialized healthcare) it seems at some point the politico’s will revisit and hopefully improve it.
As an aside… It seems a fundamental right to have good legal representation and it doesn’t seem fair that the wealthy have an advantage in this. Why not socialize the law? We could have set rates, have everyone purchase legal insurance , and randomly assign legal representation. I have a feeling that this one would definitely be found unconsitutional…
February 7, 2011, 5:27 pm;-)
Sarcastro says:
Yeah, the people who put any faith in the people are just crazy!
February 7, 2011, 5:27 pmAnym_Avey says:
That clause after the final comma contains a wealth of insight.
Corporate personhood is the basic doctrine that allows limited-liability entities to enter into contracts and issue protected statements on their own behalf. The personhood is not absolute under law and serves as a simplifying convenience, not an aboslute an inviolable set of rights (among other things, corporations are commonly brought to a complete end for activities that do not merit capital punishment when performed by individuals).
You may not like it, and perhaps some judge out there does not like it, either, but a judge willfully ignoring all precedent regarding corporate personhood to make a pissy personal point (possibly not the technical term) would create enormous uncertainty in the business climate and therefore havoc, and would be unfit to hold his or her office.
February 7, 2011, 5:28 pmShelbyC says:
Loki, the comments above reflect the understanding that, while courts are relatively free to ignore their own precedents, a judge must either follow higher court precedents or resign. I’m looking for evidence that a contrary finding is completely absurd, as absurd as, say, naming Andersen’s cat chief justice. Is strong vertical/weak horizontal stare decisis part of the Constitution? Can it be changed by judicial fiat?
February 7, 2011, 5:34 pmI Callahan says:
I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.
I admit that there isn’t much caselaw regarding the third amendment, but it looks pretty plain to me:
With all due respect, Professor Kerr, just how much more information do you need?
This is what’s wrong with constitutional law in the United States, or at least who’s interpreting it. For the most part, the document is in plain English. Why judges/professors would even have separate opinions about this is beyond me, but then again IANAL.
February 7, 2011, 5:35 pmjink says:
My visits to this blog (among other things) have awakened me to a couple of realities. As a non-lawyer, I used to think of “THE LAW” and “THE CONSITUTION” as set in stone realities. But they are not. The law is whatever the people decide it is (or allow their congresscritters to decide) and the constitution (just a piece of paper to me now) is initially whatever 9 politically appointed judges say it means. And even the 9 black robed wise men/women can be overturned if enough of the population disagrees. We COULD pass an amendment to the constitution that explicitly says slavery is legal. That’s not something that would ever happen, but that WOULD be constitutional, right?
February 7, 2011, 5:37 pmKazinski says:
Well you know what the founding fathers thought about that. One house of one branch of government was enough for the people. Even though they made that one house the most powerful one by controlling the purse strings. They felt more comfortable with the Senate, the President, and the Supreme Court there to constrain the House. And the Constitution.
February 7, 2011, 5:37 pmwumhenry says:
You are attacking a strawman. I neither said nor implied that the answer to all Constitutional questions is self-evident in the Constitution’s literal meaning. I am well aware that the Constitution includes indeterminate terms such as “cruel and unusual,” “unreasonable,” and “speedy” and terms such as “due process,” “privileges and immunities of citizens of the United States,” and “equal protection of the laws” that require interpretation taking into account more than merely their literal sense. And I also know that even provisions that are fairly clear-cut are fuzzy at the margins. Nevertheless, there is a core literal meaning that isn’t subject to reasonable dispute and hasn’t changed over time. I gave one example, which you haven’t come to grips with: “the House of Representatives shall chuse their Speaker and other Officers and shall have the sole power of impeachment.” Has the meaning of that provision changed since 1792, and is there doubt that it denies the prerogative of impeaching a Speaker of the House to anyone outside the House of Representatives? Clearly not.
February 7, 2011, 5:47 pmAndy Patterson says:
It is not the “Virginia Supreme Court” — instead, it is the Supreme Court of Virginia.
The way to remember it is that the court’s acronym, “SCV,” is the same as for the Sons of the Confederate Veterans. Historically, the overlap in membership was substantial.
February 7, 2011, 5:52 pmSeamus says:
A superior court hands down a ruling explicitly telling you that the equal protection clause applies to the Federal Government, even though you know the 14th Am. only applies to the states. What do you do?
You mean the way the U.S. Supreme Court did (for all practical purposes) in Bolling v. Sharpe? You proceed as if the 14th Amendment was applicable to the federal government.
Next question?
February 7, 2011, 5:53 pmloki13 says:
You obviously didn’t read my post, supra.
First, there’s the distinction between horizontal and vertical stare decisis. You seem to know that.
Second, there’s the difference between what “should” be done and what can be done. Could a judge just ignore precedent? Sure. It happens. Sometimes blatantly. There’s various ways in our system to correct for that. This is more of an “ought.” And there’s a reason for that-
our *entire system* depends on judges following vertical stare decisis. It can deal with outlier decisions (where judges screw up by accident, or blatantly choose not to follow precedent). But what people here are advocating is that there is no vertical stare decisis.
I ask you- how would this system work? If no law is binding, how do you administer the law? How do lawyers advise their clients about what the law *is*? WHat do trial courts rule on? Why bother with appellate courts (how can you correct legal errors when there’s no standard to correct against?). And so on.
Vertical stare decisis is how our system works. It’s how it’s always worked. It’s how it works for those thousands upon thousands of cases every year that people don’t post don’t care about at all.
So, the burden is not on me. You asked for evidence and I gave it to you. Let me ask you- what is preferable about a system where judges are supposed to disregard precedent when they are inclined to do so?
February 7, 2011, 5:53 pmloki13 says:
dave h,
Was my point just made? Judge Seamus just dismissed your claim. Hope it wasn’t important, and you have the money to file the (winning) appeal.
February 7, 2011, 5:57 pmNo Theory of Jurisprudence says:
Judge Sheeh is not, so far as I can tell, on the Supreme Court. But I think that is a perfectly supportable way of dealing with the issue if the default is Congressional deference (rational-basis test). Assume the opponent’s argument and then demonstrate why their argument, properly assumed, would not resolve the dispute in their favor. Congress can only regulate activity. Not-purchasing health care is an activity. Congress made a judicial finding that not-purchasing health care is an activity. Even if the opponents think Congress may only regulate activity, it has done nothing more; therefore, HCM is constitutional.
That is a very judicially restrained attitude, and one appropriate, I think, where Congressional acts are concerned.
February 7, 2011, 5:58 pmwumhenry says:
The well-nigh universal commonsensical conviction that the text of the Constitution has a self-evident core literal meaning that is independent of what judges say about it is *not* irrelevant to this question: what does it mean to swear to uphold “the United States Constitution”?
That the literal meaning is to some extent indeterminate is beside my point.
February 7, 2011, 6:07 pmSarcastro says:
Yeah, I must have left out “alone” in my discussion of faith.
But the important thing is that the founders hated them some civic participation, and relied only on the Constitution and their own dead hand to steer society.
February 7, 2011, 6:08 pmShelbyC says:
As I said, I don’t see how, based on the quotes you gave, what this judge did is different that if the SCV had overruled itself a couple of weeks later. Am I missing something? I think I am missing the part of your quotes where vertical stare decisis is supposed to be especially binding, as opposed to horizontal stare decisis.
And other people are suggesting that ruling, as the judge did here, that vertical stare decisis doesn’t apply is especially henious, that the judge should be impeached, or have an armed marshal come to enforce stare decisis. All I said was that judges are perfectly free to rule that they aren’t bound by vertical stare decisis. And there is plenty of room in the law to argue that the rule isn’t as strong as the current rule is held out to be (say that it’s more like the rule for horizontal stare decisis.
February 7, 2011, 6:10 pmOrenWithAnE says:
How could an amendment be unconstitutional? It’s literally part of the Constitution.
It means upholding the structure in Article III in which some courts are inferior in judgment to others.
February 7, 2011, 6:17 pmloki13 says:
ShelbyC,
Well, I have actually written some long papers on the differences between horizontal and vertical stare decisis, as well as the criteria that SCOTUS uses to overrule past decisions (and the difference between an implicit and an explicit overruling).
I don’t see that as availing you, however. Since this is the system that we have today, I ask you- how would your proposal work within our common law system? Which articulation of (weak) horizontal stare decisis would you favor? What would be the standard of review of a superior court for a lower court going “off the reservation?” Can a judge use this for any area of the law that he wants? For example, I knew a law professor that had some serious doubts about foundational black-letter contract law. Were he a judge, could he just start ruling based on what he thought contract law should be? How would this affect settled expectations of parties? And so on.
Just tell me how this would work? Or are you just talking about the subset of “obvious” and “important” cases?
February 7, 2011, 6:21 pmIspep Teid says:
Maybe the appellate courts can’t catch them all.
February 7, 2011, 6:23 pmOrenWithAnE says:
Those two eventualities are a sort of argument by recourse to ultimate resolution. I would suggest that a stern reprimand followed by a GVR by the court of appeals would be sufficient in this case.
The point about impeachment and Marshals is that the authority of the legislature and the higher court (respectively) is settled. When a litigant wins in a higher court, he is entitled to coercive enforcement of that ruling. When the legislature has decided that a judge is no longer fit to serve, they are entitled to remove him. Most of the time, it never comes to that.
February 7, 2011, 6:24 pmBen P says:
There’s also the ever popular “I’ll take that under advisement.”
In an honest to god situation I’ve been sitting in Court for, there was a pending motion to set aside service for a party that either was or was not in default depending on whether service was proper. The judge takes the “under advisement” and would not issue a ruling even when pressured by the parties. Both parties are now at a loss on how to proceed because either the suit is bad and the statute of limitations past, or the party is in default and there’s no point in settling for what the plaintiffs want.
I love judicial elections….
February 7, 2011, 6:27 pmIspep Teid says:
Sounds like a job for mandamus or special action.
February 7, 2011, 6:30 pmBrian G, says:
They have an obligation to faithfully apply the Constitution to the situation, since it is, you know, the supreme law of the land.
February 7, 2011, 6:31 pmOrin Kerr says:
Jink,
You’re certainly entitled to your reaction, but I think you’re very much misjudging mine.
February 7, 2011, 6:39 pmBrian G, says:
I think the default should be fidelity to the Constitution, not “deference” to a body that is prone to violating it. But maybe I’m just crazy and dreamed up a place where judges were sworn in with an oath pledging they uphold the Constitution, as opposed to the whims of Congress.
February 7, 2011, 6:41 pmJakeD says:
Professor Kerr:
Did your original “some commenters” refer to those of us supporting Judge Vinson’s decision on PPACA? If not, which “lower court judge” were you referring to?
February 7, 2011, 6:54 pmOrin Kerr says:
Brian G,
I have a question for you. Imagine two scenarios: In (a), you have a living constitutionalist Supreme Court and an originalist trial judge, and in (b), you have an originalist Supreme Court and a living constitutionalist trial judge.
I gather from your comments above that you think the originalist trial judge must, to satisfy his oath, reject Supreme Court decisions that reject originalism. My question for you is, do you think the living constitutionalist trial judge has the same obligation, to satisfy his oath, to reject originalist decisions of the Supreme Court?
February 7, 2011, 6:56 pmOrin Kerr says:
jakeD,
What a puzzling question. Obviously, I don’t think that all people who think Vinson’s decision was correct “celebrate lower courts judges who are less concerned with following Supreme Court precedent than getting the law right as they see it.” I’m curious, why would you ask that question?
February 7, 2011, 7:04 pmNo Theory of Jurisprudence says:
So how do you resolve disputes where reasonable minds disagree as to a law’s constitutionality?
Congress has never passed an obviously unconstitutional law. In the Founders’ generation, only one Congressional act was ever declared partially invalid (the Judiciary Act in Marbury vs. Madison) although the same Judge who did that set forth the legal concepts of deferring to Congress which prevail to this day. The next time an act of Congress was declared unconstitutional was decades later in Dred Scott. The idea that Congress “is prone to violating” the Constitution has little historical support.
February 7, 2011, 7:06 pmJakeD says:
Professor Kerr:
I was asking in order to clear up Jink’s posts to you in that regard. To which other “lower courts judges” were you referring?
February 7, 2011, 7:14 pmJakeD says:
No Theory of Jurisprudence:
I thought that dave h’s hypo was as close to an obviously unconstitutional law as possible:
“You are a lower court judge, and your superior [appellate] court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?”
February 7, 2011, 7:23 pmJohn A. Fleming says:
1. Isn’t there a common/statutory law distinction here? Knowing only what I picked up about the law here and at Wikipedia and next-level sources, it seems that judges at common law could very well decide that the facts of this case over-ride what the VA SupCt said.
2. Let us hope this sort of thing, willful conflict between superior and inferior courts, is an outlier, and not indicative of a deeper problem: e.g. Reinhardt’s poison, “they can’t catch all of them”.
February 7, 2011, 7:25 pmNo Theory of Jurisprudence says:
JakeD,
I have already responded to dave h’s hypothetical. Please clarify what you want from me.
February 7, 2011, 7:29 pmGuy says:
The flaw of formalism, and, I think, all attempts to identify a metaphysical “law” apart from “non-law” in an objective way. I think the Constitution and statutes implicitly bind lower courts to superior courts, but what if someone disagrees? I guess we’re at loggerheads.
Is the Constitution the Supreme Law because it says so? Can’t be, otherwise I could make a new Supreme Law of the Land in my basement. At best, the Supremacy Clause shows that the states went into the Constitution with both eyes open, but the Constitution only remains the supreme law because it is acknowledged as such by the people – it has legitimacy, to put it another way.
You know, even in a formal logical language, the meaning of “or” can only be defined with reference to an “or”-concept in some other language, or implicitly by rules of inference (which themselves can only be communicated in a language outside the formal language). Law is ultimately a sociological phenomenon, not just a set of formal rules.
February 7, 2011, 7:55 pmKazinski says:
Well I think you can rely too much on current public opinion, for instance the way public opinion swayed back and forth on the Iraq war didn’t provide a reliable guide to a workable policy.
And I don’t think the current polls about the unpopularity of Obama care should be controlling, but the election, if the new House majority can retain its focus, will be controlling. If the people speak consistently their voice will control, there is no doubt about it, its when opinion goes back and forth which leaves the outcome in doubt.
February 7, 2011, 7:57 pmPeter says:
@Stanley:
It what way is jury nullification a problem? It needs to be used more and the jury (IMHO) should always be informed of that right during the jury instructions.
What really bothers here, while not on topic, is what Jardinero1 said early in the comments: “Actually, cops and prosecutors get to pick and choose which laws they want to enforce,”
This has always annoyed me in the US legal system and always felt it led to bad laws that are only passed because of targeted enforcement. Out of curiosity, there any place in the US that is “must prosecute” as opposed to prosecutor discretion.
February 7, 2011, 8:10 pmPassing By says:
As GMason pointed out upthread (and I tried to hint obliquely upthread), the Louden County judge’s opinion basically says he is following the relevant superior court precedent — the SCOTUS Padilla decision. His implication is that the Virginia Supreme Court, in its Morris and Chan decision, disregarded that controlling precedent.
If he’s correct, then he may get overtruned on appeal to the Virgina SC; but then be sustained on further appeal to the Fourth Circuit.
By the way, I realize that this interpretation takes away Prof. Kerr’s nice example of a lower court dissing higher-court precedent. Nonetheless, it seems rather central to the case.
[OK Comments: That would be an interesting interpretation if there were a genuine basis for asserting it. But the Loudoun county judge was interpreting Virginia state procedural law, while the Supreme Court decision was on the substantive law of Sixth Amendment rights. The two decisions involve two distinct bodies of law created by two distinct sovereignties. I suppose you can always try to manufacture an argument and change the subject by saying that a judge "basically" makes a claim that is different from the one he actually does make, but I don't see how that advances the argument.]
February 7, 2011, 8:20 pmGuy says:
It’s a problem in that it replaces law with whims, bias, and arbitrary caprice. I wouldn’t call it a “right” so much as a “necessary evil”. Just because there’s no way to prevent it doesn’t mean it should be encouraged.
I don’t think prosecutorial discretion should be overemployed, but it, too, is a necessary evil, as prosecution is an irreducibly discretionary function, and at least prosecutors are accountable to somebody for their exercise of the discretion – and even to the law, to an extent.
February 7, 2011, 8:27 pmIspep Teid says:
SCOTUS is clearly more badder and more tougherer than those Virginia weenies. I’d follow the SCOTUS precedent.
February 7, 2011, 8:30 pmOrenWithAnE says:
And the Constitution explicitly makes them inferior to the Supreme Court. Their obligation is first and foremost to act within the limited grant of power for inferior tribunals.
February 7, 2011, 8:38 pmSarcastro's Little Brother says:
As Judge Stephen Reinhardt reportedly has said, “They can’t catch them all.
February 7, 2011, 9:22 pmMichael Ejercito says:
This is what happened with Lawrence v. Texas.
On appeal to the Texas 14th Circuit, the three judge panel had ruled that the Texas anti-sodomy law did not violate the 14th Amendment, due to Bowers v. Hardwick being binding. It then ruled that the law violated Texas’s state constitution. The full court reheard the case en banc, reversing the panel ruling that the law violated the Texas constitution, while affirming the finding that it did not violate the U.S. Constitution due to Bowers.
When the Supreme Court issued its ruling, Justice Kennedy noted it was proper for the Texas 14th Circuit to uphold the law.
Cases do not get appealed from the Virginia Supreme Court to the Fourth Circuit.
Instead, cases go from the Virginia SC to SCOTUS directly via a writ of certiorari.
February 7, 2011, 9:26 pmrpt says:
But one trial judge doesn’t get to decide his own interpretation of the Constitution. “You’re not the boss of me” is not a judicial option.
February 7, 2011, 9:52 pmMilhouse says:
Has nobody here heard of ultra vires?! No judge has the authority to contradict the constitution; any purported decision of a superior court that does so is by definition null, because the judges had no authority to make it. So how could it be binding on lower court judges?
Further, even if this were not the case, a judge presented with the choice between obeying the constitution or the superior court’s precedent is in exactly the same position Marshall found himself in Marbury, faced with the choice between obeying Congress or the constitution. Since it’s impossible to do both, the judge must choose, and his duty is clear; he swore to uphold the constitution, not the rogues and traitors who sit above him.
February 7, 2011, 9:53 pmDave N. says:
Here’s what appears to me to be happening with this case.
The United States Supreme Court ruled in Padilla v. Kentucky that defense attorneys must advise their non-citizen clients of the immigration repercussions of their convictions, particularly if it could lead to removal.
The Supreme Court of Virginia is not challenging that decision in any way. Rather, it held that a Petition for Writ of Coram Vobis cannot be used to correct Padilla error.
A quick Westlaw search demonstrates that courts are split as to whether Padilla has retroactive effect in habeas corpus cases or whther it is barred by Teague v. Lane. Compare United States v. Chaidez, 730 F.Supp.2d 896, 904 (N.D. Ill. 2010) (finding that Padilla was not a new rule so Teague inapplicable) with Haddad v. United States, 2010 WL 2884645, *6 (E.D. Mich. 2010) (“it is unlikely that Padilla will be made retroactive to convictions under collateral attack”).
In other words, as someone noted upthread, there are two different issues involved here. The Supreme Court of Virginia has authoritatively spoken on one (which the U.S. Supreme Court has not yet addressed) (retroactivity) and the U.S. Supreme Court has spoken authoritatively on the other (defense counsel’s obligations to a non-citizen client).
Don’t confuse the issues. The judge here clearly overstepped his bounds by ignoring the the Supreme Court of Virginia — even if that means there is NO remedy at all for past Padilla violations.
February 7, 2011, 10:03 pmMichael Ejercito says:
The problem is, even Supreme Court justices disagree on what the Constitution means.
The American people should at least expect a consistent interpretation of the Constitution by the federal judiciary; otherwise, what the Constitution means would depend on which court happens to hear a particular dispute. This will create additional uncertainty as to the rights of the people under the Constitution, and the states’ authority under it.
At least with vertical stare decisis, people going to a court case will know how lower courts will rule. Furthermore, if there is binding precedent, a case can be summarily decided at the trial level, leaving it to the appropriate appellate court to decide whether the precedent was applied consistently with “the condition of the men who framed that” constitutional provision.
February 7, 2011, 10:10 pmrpt says:
Milhouse:
Michael is right. If you give every trial judge to right to come up with his or her sui generis (i.e. Bush v. Gore or Vinson) interpretation of the “Constitution” then you have one big unpredictable anarchic mess.
February 7, 2011, 10:17 pmPassing By says:
You are, of course, quite correct. Thanks for the catch.
February 7, 2011, 10:26 pmHm. says:
This may highlight my ignorance of constitutional history, given that my studies focus on nearly everything but domestic issues, but I’ve been operating on the assumption that there was always a distinct separation of powers, wherein no one part of the federal government was ‘higher’ than the other…
February 7, 2011, 10:49 pmcfi says:
Orin Kerr: I think there are two lawful options:Follow the precedent or resign from the bench.
I had an internship in Germany and in their legal system lower courts are not bound by precedent of higher courts. I recall being at a Federalist Society gathering at which Cass Sustein made the reasonable but incorrect comment that lower court obedience was a necessary component of the rule of law. Not so. Germany, for instance, is law professor heaven – their views are actually consulted regularly by lawyers in preparing cases. If the professors’ arguments are considered authoritative and persuasive, that could win the case.
Clearly not the system we’ve got here.
February 7, 2011, 11:15 pmAaron says:
To some extent, I’m okay with higher variance, if the average is better. A higher uncertainty does indeed have a real, measurable cost, but so does continuing to follow bad precedent.
February 7, 2011, 11:16 pmAaron says:
In theory, you are correct between branches, but the judiciary has a long-standing habit of giving great deference to the elected branches. (And of course, within a branch, there are clear higher-ups and lower-downs).
February 7, 2011, 11:19 pmwumhenry says:
Lower courts are inferior in that their decisions are subject to appeal and review by higher courts. It doesn’t necessarily follow that they must decide Constitutional questions in accordance with Supreme Court precedent that they consider erroneous. To the contrary, Article VI says that “this Constitution” — not “this Constitution as construed by the Supreme Court” — is the supreme law of the land and that judges in every state shall be bound by it. Article VI also says that all executive and judicial officers shall be bound by oath “to support this Constitution.” “This Constitution” and “this Constitution as construed by the Supreme Court” are not semantic equivalents.
February 7, 2011, 11:43 pmCockleCove says:
Agree wholeheartedly that Virginia’s Supreme Court isn’t thumbing its nose at the U.S. Supreme Court. Perhaps it will be useful to think back to the time immediately following June 13, 1966, when Miranda v. Arizona was handed down. Defendants whose cases had already gone through the appellate pipeline weren’t entitled to have their convictions tossed on the ground that their confessions should not have been admitted at trial because they were not given Miranda warnings in, say, 1959.
As others have pointed out, the Supreme Court has not yet ruled on whether Padilla should be applied retroactively. But even if the Padilla Court had declared its decision was to be given retroactive effect, that would benefit only defendants with pending appeals or who have other, viable post-conviction litigation in the hopper.
Luis Cabrero, the Loudon County petitioner, pleaded guilty in 2005. So his time in which to file an appeal from those judgments ran out years ago. Which means he is unquestionably boxed out of pursuing habeas corpus relief in the federal courts where there is, generally speaking, a 1-year statute of limitations measured (with some tolling periods authorized by Congress that do Cabrera no good) from the date on which the conviction became “final”. Virginia too has a cut-off date after which it is too late to initiate habeas corpus proceedings in its courts, and Carbrera is beyond that one.
I admittedly skimmed through the 2 Virginia opinions, but neither seems to shed light on why the attorneys sought to have their clients’ sentences reduced. That won’t do them any good insofar as deportation concerned. Although at one point, serving a sentence of less than a year saved you from automatic deportation, that hasn’t been true in quite some time. Pleading guilty to a deportable offense which carries a possible prison sentence of 1 year or more is the pertinent criterion. It matters not that you served less time in jail or none at all.
So I’m guessing that resentencing is deemed by Virginia law to be a new judgment, thereby paving the way for an appeal or other post-conviction attack in which Cabrera could argue that (a) Padilla should be applied retroactively to him, and (b) he’s met both prongs* for a finding of ineffective assistance of counsel. Perhaps someone from Virginia will give us more informed insight into the strategy behind filing these particular petitions.
I’m also curious to learn if, under Virginia law, the knowing and voluntary nature of a plea is a purely factual finding. I noticed that Loundon County Judge Worcester cited no authority for that proposition (1st sentence, p. 12). Like the U.S. Supreme Court, New York considers it to be a mixed question of law and fact, so he would have had to come up with yet another angle for granting the writ were he sitting in my state.
* Even if your attorney didn’t alert you to the possibility of deportation, Padilla doesn’t guarantee that your conviction will be invalidated. You also have to demonstrate that you wouldn’t have pleaded guilty, would have insisted on going to trial “but for” that misstep on counsel’s part, and that the trial would have likely ended in a verdict more favorable than the judgment of conviction entered owing to your guilty plea. This isn’t usually a piece of cake: Padilla himself is now litigating that question of “prejudice” in the Kentucky courts. The Loudon County judge’s few, conclusory words suggest to me he glossed over the additional requirement.
February 8, 2011, 12:30 amneurodoc says:
A recent EV post dealt with expungement years after the conviction and prison sentence had been served. Would “vacating” be the same as or different from “expungement.”
neurodoc isn’t informed as to the details, but bleieves it to be that case that trial court judges in Maryland have a little advertised power to reduce prison sentences they handed down years before pretty much at their discretion. Did Judge Worcester try and sentence this man years before, and thus the case was back before him?
February 8, 2011, 12:32 amOrenWithAnE says:
For those of us that believe that justice is integrity, this is not merely a cost but a perversion of the entire point.
In what kind of absurd structure would a lower court be subject to appellate review by some higher court but not be obliged to follow their rulings? In fact, what would the point of an appeal even be if the lower court is not obliged to follow it? The appeals court would be a nullity.
Neither is “this Constitution as construed by some lower court” or “this Constitution as construed by some town official”.
Imagine the absurdity if a police officer came up to you and insisted that his interpretation of the Constitution was the operative one and that he was not bound by contrary rulings of the courts (probably using some hyperbolic language like ultra vires and so forth).
February 8, 2011, 12:44 amLurker says:
Just take the way it works in Germany (as CFI correctly pointed out): Courts are not bound by precedent (except for decisions by the Federal Constitutional Court declaring a law unconstitutional) unless their decision in a specific case is overturned – then they are bound by the higher court’s interpretation of “what the law is”, but only as far as the current case is concerned.
That way, courts don’t often disagree with “precedent” (since they don’t want their decisions to be overturned), but when they do, they do it for a reason (because they truly believe their interpretation of the law is correct while the higher court’s is not).
It’s a system that works pretty fine and really helps to strengthen our understanding of law (since flaws in a higher court’s reasoning will be pointed out not only by law professors, but also by lawyers and lower courts) – but it may be unworkable as far as common law is concerned (which we don’t have).
February 8, 2011, 1:54 amkerr says:
They the Constitution is violated by another,. Don’t judges take oaths to uphold the Constitution?
February 8, 2011, 4:28 amkerr says:
Your cat would probably do a better jon of it
February 8, 2011, 4:30 amSarcastro says:
[Yeah, I do agree with you on that - I'm no small-d-democrat. Our checks and balances are great. (Though I am concerned about the current growth trend in executive power).
But the Constitution is not the only thing keeping this country from tipping over into tyranny. There is also the people, and let us not forget guns!]
February 8, 2011, 7:46 amNo Theory of Jurisprudence says:
Yes, which is exactly why resignation is the only manly response.
February 8, 2011, 9:01 amThe End says:
This judge has two words in his future REVERSED and REMANDED. That is going to be one heck of a benchslap. Not sure the usual practice in Virginia, but it also wouldn’t surprise me if they remanded to another judge too.
February 8, 2011, 9:39 amcboldt says:
– otherwise, what the Constitution means would depend on which court happens to hear a particular dispute. –
February 8, 2011, 9:50 amThat’s the situation.
– At least with vertical stare decisis, people going to a court case will know how lower courts will rule. –
In civil law, ff the parties knew what the ruling would be, they would not litigate.
In most criminal law, the action of the courts is pro-forma. Still, if the parties knew to a certainty the outcome, they wouldn’t prosecute (evidentiary, arrest procedure, etc.) challenges before a judge.
All that said, vertical stare decision is a good tool, and it ought to be respected.
I don’t know what the fix is, when the superior court is schizophrenic, as SCOTUS is with regard to the Miller case, with its latest construction, in Heller, being incorrect. The incorrect read is what, so far, the lower courts uphold.
wumhenry says:
The Constitutionally mandated administration of the judicial oath to uphold the Constitution and laws of the U.S. implies that that’s how it should work here (with no exception for Constitutional questions). And the German experience proves that that approach is not as unworkable as certain Chicken Littles imagine.
February 8, 2011, 11:28 amwumhenry says:
Not at all. The point of an appeal would be what it has always been: to have the lower court’s decision in the case overruled.
Right. An oath to uphold “the Constitution of the United States” obliges the oath-taker to uphold it as *he* understands it, which may differ from someone else’s understanding.
February 8, 2011, 11:46 amJaimeInTexas says:
“The Constitutionally mandated administration of the judicial oath to uphold the Constitution and laws of the U.S. implies that that’s how it should work here…”
Only if the laws are in pursuance of delegated powers.
I am truly trying to understand the arguments in support of lower courts being bound to follow higher court precedents. All I can do is shake my head in sadness.
I do not see where the only options is either follow precedent or resign. Error upon error, over a long period of time become impossible to change. And prior decisions are not amendments and not law.
I consider myself a textualist, bounded by the meaning of the words as understood at the time of the writings. A textualist/originalist?
Maybe I am being silly or obstinate but, the text of the Constitution makes a distinction between the SCOTUS’ appellate and original jurisdiction. Maybe the SCOTUS should earn their keep and be the first to hear the cases where a State is a party against the FedGov. If the system clogs up, so be it. Maybe that is what supposed to happen when the FedGov keeps expanding beyond its delegated powers.
Ultimately, the SCOTUS itself is part of the FedGov, and whatever they do will always increase the FedGov’s scope: for itself or the other 2 branches.
One thing I am for certain, that the SCOTUS must not be allowed to get away with making decisions, not to reverse a previous SCOTUS decision, because the judges feel that the SCOTUS’ reputation will be harmed.
February 8, 2011, 12:41 pmOrenWithAnE says:
But if the lower court is not bound by precedent, they can simply rule that way again and again.
Lower Court: Town clerk must issue SSM licenses because of equal protection.
Higher Court: No, reversed and remanded.
Lower Court: Town clerk must issue SSM licenses because of EPC.
Higher Court: No, reversed and remanded.
[ Repeat a few hundred times... ]
Really? So if my friendly town police officer (actually they really are all good guys afaict) convinces himself that the Constitution doesn’t protect the RKBA, he can take my guns?
Maybe a court will overrule him and order the guns given back. Since there’s no precedent, the next day he can take my guns again. The voters here would love it (they are all fairly anti-gun, although many can be made to see reason if you walk them through it slowly and talk about, say, having a long gun in your own house — and as I said, the officers tend to be alright and even sympathetic to gun owners within the confines of some very strict laws). The net effect is that it would be an ordeal to own a gun, so much so that I would probably just give up.
This does not strike me as a rational system for upholding the law or protecting the exercise of liberty as we understand it in this country. I don’t give a fig what Officer Friendly thinks about the second amendment, he ought to be bound by the courts in their interpretation.
February 8, 2011, 12:41 pmOrenWithAnE says:
What about Morrison?
February 8, 2011, 12:44 pmJaimeInTexas says:
Sorry, not a lawyer. Just a programmer who finds the law and Constitutional questions interesting. Could you give me the full case name so I can google it? Do you have, within very easy access, a link to a goo summary?
February 8, 2011, 1:04 pmKatja says:
This is … not quite the case. While German judges indeed are independent and only bound by the law (Article 97 (1) Grundgesetz) and that extends to not being bound by how other judges think, “Rechtssicherheit” (predictability of the law) is also a constitutional mandate in Germany and there are mechanisms in place to ensure that.
Lower courts may in theory decide however they want, but in practice, if they deviate from the principles established by the higher courts, their decisions simply won’t survive appeal. Federal courts regularly publish their important decisions (including guiding principles, so-called “Leitsätze”) and the lower courts de facto try to adhere to them, even though de iure they are not bound by them.
February 8, 2011, 1:27 pmMichael Ejercito says:
Like if a state made abortion a capital crime.
February 8, 2011, 2:17 pmWithout vertical stare decisis, prosecutions could proceed to trial if it happens in a court where a judge disagrees with Roe v. Wade. With judges that follow vertical stare decisis, such prosecutions would be dismissed before trial, and the dismissal upheld on appeal, meaning that the Supreme Court would have discretion on revisiting Roe.
wumhenry says:
Couldn’t the appellate court cut that short by leaving out “remanded” the second time around?
If the cop has sworn to enforce state and local laws and there’s a gun-confiscation law on the books and the cop believes it to be valid (whether because he disagrees with the SCOTUS holding in Heller or is unaware of it), then he would have a colorable basis for confiscating your guns. And if you raised a Heller-based stink about it with his superiors they’d probably return the guns to you and tell the cop not to do that again if he wants to keep his job. No BFD.
February 8, 2011, 3:10 pmOrenWithAnE says:
http://en.wikipedia.org/wiki/United_States_v._Morrison
This was a SCOTUS decision that decreased the scope of the Federal government’s power.
February 8, 2011, 3:17 pmwumhenry says:
The notion of strict stare decisis is logically incompatible with the administration of oaths of office to all judges, yet that scenario doesn’t happen. Probably in large part because of cognitive dissonance in the minds of lower-court judges that enables them to proceed as though they had no discretion to rule inconsistently with higher-court precedent without feeling guilty of shirking responsiblity. The scenario would be unlikely even in the absence of such cognitive dissonance, however, because few, if any, prosecutors would waste time pursuing convictions that would almost certainly be thrown out on appeal.
February 8, 2011, 3:32 pmOrin Kerr says:
Commenter “kerr,” could you find a new screenname? The similarity between your name and mine is likely to cause confusion. Thanks.
February 8, 2011, 3:36 pmAaron says:
Justice is obviously not integrity. Integrity is obviously extremely useful in getting a working system of justice, and highly desired for all actors, but it’s not the same thing at all. Nor is consistency the same thing as integrity.
Here is one bad justice systems: defendants who show themselves to be polite during their trial have their testimony actually considered by the jury, and those who are actually innocent are exonerated. The sullen and argumentative, meanwhile, are always convicted.
This is horrible, right? Unequal treatment, etc, etc.
Now suppose that the justice system is fixed so that the testimony of the polite is disregarded. Hooray! Now everyone is equally treated. No more problem! At least if you think that unequal treatment is the underlying problem and perversion of justice. Except now there are more miscarriages of justice. It’s true that the perfect justice system has less variance, and everyone is treated the same, but everyone being treated the same does not make for a perfect justice system.
February 8, 2011, 3:36 pmLurker says:
That’s exactly the way it is supposed to work – german courts will only deviate from “precedent” if they believe that their reasoning may convince the higher court(s). But if they do, the higher court will either confirm the opinion or explain why the lower court’s opinion has to be overturned. This way, everybody does the best he can to resolve legal issues – it’s not just left to the highest courts (who might otherwise be unwilling to question past decisions).
February 8, 2011, 4:49 pmwumhenry says:
Again, the Constitutionally mandated administration, to higher and lower judges alike, of the oath to uphold the Constitution and laws of the U.S. implies that that is how it should be in this country, too. (Although belief in strict stare decisis is more convenient for judges who are lazy and/or incompetent.)
February 8, 2011, 5:08 pmAaron says:
Really? I think most are advocating that vertical stare decisis should normally be followed, but that there are rare exceptions when the higher court is not just wrong, but egregiously wrong.
February 8, 2011, 5:10 pmrpt says:
The Constitution is not the Bible.
February 8, 2011, 6:48 pmOrenWithAnE says:
You mean prosecutors could impoverish abortion providers by repeatedly forcing them to spend huge sums defending the charges?
And I’m confused why you don’t think the Court has discretion now? Do you think they desire but lack any suitable vehicles to reverse Roe?
No, the appellate court cannot order a particular resolution but rather remand for proceedings “not inconsistent with this decision”. There are a number of reasons for this but the general gist is that the lower court is best suited to fashioning particular relief as they are the most intimately versed in the particular facts of the case.
You mean to say that an officer can repeatedly arrest me and seize my property based on the fact that he does not deign to accept the limits on Executive power codified into our Constitution?
Heck, at this rate, he could just arrest me and beat the living crap out of me whenever he felt like it, and if someone mentioned the Fourth, Fifth or Eighth Amendment, he can magically dismiss their claims with “that’s not how I interpret it”?
In this town, his superiors would likely be the ones pushing confiscation.
February 8, 2011, 7:04 pmCalderon says:
This isn’t accurate. An appellate court can remand with instructions, with those instructions being a requirement that the lower court order a specific resolution, e.g., dismiss the case, award X in damages, award X in attorney’s fees, etc. Appellate courts (at least federal appellate courts) can also order that a case be randomly re-assigned to another district court judge upon remand.
February 8, 2011, 7:27 pmOrenWithAnE says:
Yes, but the lower court is the one that orders the particular resolution. If they are not bound by the higher court, there is little reason to think they would be find the need to order the resolution mandated.
That works provided the number of judges that don’t understand the meaning of ‘inferior’ is relatively small.
I mean not merely consistency but the logical integrity of a system that operates, to within the human limitations, as a coherent whole. See, e.g. Dworkin (btw, R Dworkin, not A Dworkin).
Then you claim:
Equality is necessary but not sufficient for a functioning justice system.
February 8, 2011, 8:39 pmToday’s Links! February 8, 2011. « CenterRightMargin.com says:
[...] http://volokh.com/2011/02/07/state-trial-judge-refuses-to-follow-state-supreme-court-ruling/ [...]
February 8, 2011, 9:30 pmAaron says:
Then I’m afraid we don’t have a functioning justice system, nor will we ever.
You seem to be rhetorically asserting that the justice system should be graded on a binary system, either completely working, or completely not. This excludes the middle that is actually possible of a justice system that works less well or more well.
We agree that any inequality means not perfection, but that doesn’t mean that decreasing inequality is always a step towards better justice. All courts as “hanging judges” is perfectly equal, but worse than one where half of them instead consider the evidence fairly. All courts as “bleeding heart liberals” that let everybody go with a suspended sentence is also perfectly equal, and worse than one where half of them instead rule fairly. In each case, adding inequality, gives a better, though still awful justice system.
When precedent is egregiously bad, the same thing really does hold for refusing to follow it. Uncertainty as to what law effectively holds, is of course a bad thing, so the barrier to doing this should be extremely high.
I guess this could be summed up as “chaotic good is much preferable to lawful evil”. Hmm. Put this way, I can see why some lawyers disagree so vehemently.
February 9, 2011, 12:51 amnick says:
To the law professors reading this, one of the grand lacunae in Con Law classes was complete absence of discussion about how decisions that radically overturned prior Supreme Court precedent got to the Supreme Court in the first place. Was there a circuit split, or has the Court often take cases where they wanted to overturn precedent despite lack of a circuit split? If there was a split how did the lower courts justify overturning precedent? For one example out of many, the famous Brown v. Board of Education which overturned decades of settled precedent regarding “separate but equal” under the 14th amendment.
BTW, if you want to see the most blatant examples of a lower court radically violating the precedents of a higher court, while barely pretending to follow them, check out many of the Federal Circuit’s decisions on patent law, and in particular regarding software patents. The Supreme Court’s decision in Parker v. Flook effectively prohibited nearly all software patents, except that the Federal Circuit proceeded to allow practically unlimited software patenting. The Supreme Court later gave in to the inevitable and ratified the Federal Circuit’s overturning of its precedent. (Yes, I know that’s not how Westlaw and Lexis label the cases, but that is what in reality happened). The Federal Circuit has essentially made itself the Supreme Court as far as patents are concerned. No circuit splits there!
February 9, 2011, 3:58 amOrenWithAnE says:
Quite the contrary, there are limitations that prevent any system from working perfectly. I don’t think I ever said anything to the extent that either a system is perfect or it is worthless.
It absolutely would. That would mean that citizens committing the same offense would be subject to two randomly different sets of justice based merely on the whim of whatever system assigns cases to judges. The idea that this is an improvement is a utilitarian one, not one that I would accept can be fundamental to concept of justice.
This reminds me of the famous quote by Sydney Morgenbesser — during campus protests of the 1960s he was hit on the head by police. When asked whether he had been treated unfairly or unjustly, he responded that it was “Unfair, but not unjust. It was unfair because they hit me over the head, but not unjust because they hit everyone else over the head.”
[ Note also that the term 'hanging judge' usually refers to the severity of the punishments, not the tendency not to consider evidence fairly, at least in my understanding of the vernacular. ]
Well, there is more to it. In a system that is chaotic, you cannot improve beyond the manifest injustice imposed by the chaos itself. In a lawful-evil system, there is hope yet to repeal the law or pass a new one that corrects the evil.
In other words, in the lawful system, The People have some recourse to actually fix the system in some particular way by changing the substantive rule in question. In the chaotic system, there is simply nothing that can be done to impose The People’s preferred rule on judges that are going to rule whatever the want whenever they want to (aside, perhaps from imposing VSD on them).
February 9, 2011, 12:04 pmOrenWithAnE says:
The cert process very much allows the Court to chose what cases it wants to visit and where. Brennan and Marshall were masters of finding cases in which to articulate their (new) constitutional vision.
February 9, 2011, 12:06 pmloki13 says:
Aaron,
There might be a reason why almost all people who (not all, but almost all) who actually practice in the field do not see this as the huge problem you do.
Vertical stare decisis is incredibly important to our system. We use a fancy term- reliance interests. What it means is that as a society, we need some measure of predictability. It helps us plan for out future and shape our actions- in accordance with the law. If the CEO of a company, or a private citizen, wants to do something, they should be able to consult an attorney and get a reasonably good idea of whether their action is in accordance with the law. This is based on the idea of precedent. If judges were free to ignore precedent, then all advice would basically boil down to- it’s the luck of the draw. You cannot discount this feature- it’s what allows the system of work.
You say that there should be an opportunity to “overturn” bad precedent. We already have that- it’s called “distinguishing.” No two case are alike, since they involve different litigants at different times with different facts. If case X involves a green car, the judge in case Y can say- no, that precedent doesn’t apply because this case involves a red car. How well a judge does distinguishing the case (showing why the precedent is inoperative or shouldn’t apply) will then count toward whether the precedent applies. If enough judges distinguish prior case law, then, eventually, the precedent falls into disuse.
In addition, very few cases are “single precedent” cases. The amount of weight a judge places on various issues can often determine the outcome of a case. If there is a precedent that just simply isn’t used, then eventually it no longer is very good precedent, and is likely to be overtaken by some stronger, better articulation of the facts.
In short, there are many escape valves for bad precedent in our system, and lawyers are familiar with them. But telling judges they are free to ignore vertical stare decisis is not just a solution in search of a problem, it would destroy the integrity of our entire system.
February 9, 2011, 12:42 pmloki13 says:
One of the best was Rehnquist. Whether you think it was good or bad, his choice of cases from the 70s-90s was deliberate and brilliant. To chose just one line, he consistently chose prisoner litigation cases (which were considered out of control) in order to craft broad precedent in a number of areas of law (such as sec. 1983) that had major ramifications for all litigation.
February 9, 2011, 12:45 pmMichael Ejercito says:
Regarding Brown, the case was decided in favor of the defendant in the U.S. district court, citing Plessy v. Ferguson upholding segregation. At the same time, the Supreme Court was hearing an appeal from Delaware. In that case, Plessywas cited to overturn segregation.
The Supreme Court had done exactly that in several education-segregation cases prior to Brown. (Painter, etc.) They ruled that Plessy mandated that segregated facilities be equal, and if there was no separate but equal facility, the equal protection clause mandates integration. The district court in the Delaware segregation case also struck down segregation, citing Plessy.
And then sometimes the Court refuses to distinguish the case, such as in Lawrence v. Texas (declining to strike down Texas’s anti-sodomy law on the basis of equal protection, even though the Texas law was easily distinguishable from the Georgia law at issue in Bowers v. Hardwick)
February 9, 2011, 1:10 pmTim Fowler says:
What specifically makes higher court decisions binding on lower courts? The higher court has more authority, it can overrule lower courts, and likely will if it gets a case again when the lower court went against it, but what element of the constitution, statute law, or supreme court decision directly states that lower courts can not rule differently from previous precedent.
It seems to me as if its basically legal tradition, and a mostly useful tradition (it would waste a lot of time at different court levels if everything had to be reconsidered, and then appealed, and then rejected on appeal when higher courts have already ruled), but it doesn’t seem to be a violation of the constitution or of statue law.
February 9, 2011, 1:13 pmloki13 says:
ME,
I was specifically talking about lower courts. The issue of stare decisis (as weak horizontal) on the Supreme Court is much more complicated, and since I’ve already written way too much about it
I don’t care to go into it here. If you’re interested, I think that some of the factors that Scalia goes into in WRTL are worth looking at, and there have been some good postings at Solum’s blog.
Tim Fowler,
I’d recommend looking at this thread, supra, and previous threads. You may find the answer to your question.
February 9, 2011, 1:20 pmOrenWithAnE says:
Article III of the US Constitution vesting the judicial power in one Supreme Court and other inferior tribunals.
It makes no sense for a court to be inferior but to exercise judgment contrary to the settled precedent of those above it. That’s simply not not an inferior court — it’s an independent court.
And upon remand the lower court could simply rule as it pleases again and again until the litigant no longer has money for more appeals.
Even without this (assuming that on R&R the lower court takes seriously the instruction to conduct ‘proceedings not inconsistent with this opinion’), there is a numbers game. The volume of cases makes it impossible for the higher courts to seriously assess each one on the merits. There are probably thousands of suppression hearing a day, can the Supreme Court really keep abreast of each one to ensure that its precedent regarding the 4A are being faithfully followed?
February 9, 2011, 1:23 pmMichael Ejercito says:
To further illustrate this point, let us suppose that a state (by state constitutional amendment) recognizes same-sex “marriage”, while specifying that marriage licenses and the accompanying legal protections are available only to such partnerships if both partners are white.
A black same-sex couple is denied a marriage license because of this law, and then petitions for a writ of mandamus in court asking a county clerk to issue a marriage license, claiming that the law violates the due process rights to marry, to contract, and to privacy, and claiming that the law violates equal protection on the basis of race, sex, and sexual orientation.
Under vertical stare decisis, Baker v. Nelson binds the trial court to reject the due process and privacy claims, and the sex and sexual orientation discrimination claims.
The court is free to address the due process freedom to contract claim and the race discrimination claim, and in those respects such a case would be distinguishable from Baker.
I see.
In Brown, the Supreme Court did note that a lower court had overturned public school segregation on the basis that the schools were not equal. (the lower court in that case clearly distinguished Plessy.)
February 9, 2011, 1:45 pmloki13 says:
I didn’t mean to cut off your conversation. :)
It’s just that the issue of how stare decisis applies to a court that is not bound by it (aka weak horizontal stare decisis) is incredibly complicated, and I spent over a year on it. You have to look at the various tests the court has given itself, the ways they have used (and violated) the tests, the difference between overruling a constitutional construction and a statutory construction (statutory precedents have more precedential value), the difference between an explicit and an implicit overruling, institutional legitimacy, path dependency (lock-in) and so on.
Just don’t want to go into it in a blog comment. So I wanted to state that my previous comment was about vertical (strong) stare decisis.
(I’ve already spent a great deal of time thinking and writing about this topic, and it still makes my head hurt. So I’m heading it of at the pass, so to speak, as far as my contributions. That, and I’m supposed to be doing other things right now.)
February 9, 2011, 2:07 pmOrenWithAnE says:
No argument there.
Indeed. In fact, applying relatively straightforward EPC reasoning from the SCOTUS precedent, the court would be obliged to either issue mandamus, effectively striking the offending racial qualifier, or strike the entire amendment (depending of course on the details).
But what the court certainly cannot do is fail at all to discuss Baker and how it constrains the resolution of some of the plaintiff’s claims.
February 9, 2011, 2:12 pmAaron says:
We really do have fundamentally incompatible notions of justice. Justice is not mere equality-of-treatment, nor predictability. We have perfectly good words for that. Justice is also about the fitness of the consequences to the acts, that people receive what is merited. The purpose of the law is to serve people. If they instead uniformly receive that which is not merited, that is not justice.
Change to a large system can rarely be imposed uniformly. Any improvement necessitates non-uniformity during this process.
February 9, 2011, 2:21 pmAaron says:
I don’t see it as huge problem in practice right now. And I really do see the benefits of predictability and solidity. While I can quibble with some accepted precedents, I see the judicial edifice as a whole is a quite remarkably solid and enduring force for a just and civil society.
My issues are almost entirely principle. I don’t think it reasonable that predictability is the only virtue that a justice system needs, and that occasionally other desiderata should trump it.
You mention these safety valves of distinguishment, yet of course every single case where such distinctions are made gets heavily criticized. (e.g. Orin Kerr’s attack on Vinson’s opinion) Making a distinction as in your example, between a red car and a green is not really making any real distinction, it’s just a device to get around precedent. Is it truly better to use this figleaf? Or is it a demonstration that disagreeing with and refusing to apply precedent doesn’t necessarily make the system come tumbling down?
February 9, 2011, 2:41 pmloki13 says:
It’s like a lot of things in life- it’s complicated.
I think that OK wouldn’t say that it’s impossible to make a colorable, good-faith argument that precedent forecloses Vinson’s *result*. I think that he had a problem with the reasoning. Which is fair (I had a problem with the reasoning as well, and I think that opponents of the mandate should have a problem with the reasoning- his reasoning made it (slightly) harder for the 11th).
This is a different issue- should vertical stare decisis apply. This came up during discussions of the support for the VInson decision, and suddenly, many otherwise-principled conservatives became big fans of judicial activism. No stare decisis for trial court judges. This, of course, is very different when we discuss the 9th Circuit, or Reinhadt, or empathy (heh).
Isolated cases of refusing to apply precedent don’t make the system come tumbling down- that’s why we have appellate courts (among other reasons) – to correct errors. It’s the same as an isolated case of police brutality doesn’t make everyone distrust the police. But an arbitrary system of judges deciding cases does make the system come tumbling down, as would widespread police brutality.
And judicial activism- not applying precedent and following “the law” – is legal brutality.
February 9, 2011, 2:56 pmTim Fowler says:
OrenWithAnE – “Inferior” gets you part way there, but it still seems to be a matter of legal tradition, rather than something directly ordered by the constitution. Which isn’t a way of saying that its not important. Lots of legal principles are based in common law or legal traditions, including to a fair extent the specific powers of the lower court itself. Also while inferior is vague (which is why I say that it doesn’t directly get you all the way there), vagueness in the constitution would put the decision to the courts, and esp. the higher courts up to the Supreme Court. They could (if they ever felt it was necessary, and if it was relevant to a case that came before them) explicitly rule that the constitution requires lower courts to follow the precedent of higher courts. Has the USSC every actually done so?
No Theory of Jurisprudence – “Prone to violating the constitution” is not an identical idea to “Prone to be found to be violating the constitution by the supreme court.”
February 9, 2011, 3:19 pmloki13 says:
Tim Fowler,
Please read above comments and previous threads. But if you lack the time to do so, or peruse Hamilton and Madison, perhaps you can divine from Article III why we have common law courts, instead of civil law? Why do our courts have holdings? Where does Article III insist that the majority vote of the judges (not justices) of the courts have authority to issue decisions, instead of the minority? Shall I keep going, or do you need more hypotheticals to try and understand Article III, or a desire to research the original intent of the framers?
February 9, 2011, 3:27 pmTim Fowler says:
Loki13 – I have been reading the other comments in response to this post. If there is some specific comment that you think is high quality and very pertinent you could link to and/or quote it, but “read the comments” isn’t very helpful. Reading Hamilton or Madison might be helpful, OTOH it also might be time consuming, and would mostly be writings that would not be pertinent to the question I asked. I don’t understand the purpose of your hypotheticals. If they are about legal tradition being important, even effectively binding, I’ve already agreed that much of the way our courts operate comes from legal tradition and precedent, rather than direct constitutional or statute text.
OrenWithAnE – Re: “How could an amendment be unconstitutional? It’s literally part of the Constitution.”
Article Five limits the scope of amendments. Its a very narrow limitation, only barring depriving a state of “equal Suffrage in the Senate”. But an amendment could technically be unconstitutional if it did indeed give different states different numbers of senators. OTOH I suppose article 5 itself could be amendment, and having done that you could change the senate. And of course this point wouldn’t generally be applicable, you can amend the constitution in all sorts of ways without changing the fact that each state gets the same number of senators. You could even change the senate, giving each state one, or 47 senators, as long as the number was equal for each state.
February 9, 2011, 3:48 pmloki13 says:
TF-
See my comment Feb 7, 2:17pm, for a start. In short- Article III was kind of short. You might say real short. The majority of the Framers were lawyers. They knew how courts worked. We can look to their intent (as evidenced by Hamilton and Madison in various quotes) to see what they thought. We can look to original expected application (a better test) to see what was generally thought of as “the law” at the time of ratification (see Blackstone). We can look at how the original Supreme Court and appellate courts functioned. You can do a survey of law review articles that goes in-depth into history about stare decisis. You can look at the shift in english common law from a declaratory system (weak stare decisis) into a system of binding precedent prior to the founding. If you chose not to believe it after doing the research, that’s fine, but just asserting that it’s not in the “direct constititutional . . . text” is, um, ill-informed. (Apologies- not to be ad hominem, but I can’t think of another way to phrase it. If you wanted to frame it in an interesting way, such as the ability of Congress to change us to a civil law system without stare decisis, that would be different, and that would be a difficult question.)
I don’t see the words “stare decisis” in the Constitution. I also don’t see the words “federalism” or “separation of powers.” Doesn’t mean it’s not in there. These are the things that make it work.
February 9, 2011, 4:03 pmTim Fowler says:
Loki13 – I don’t see a comment from you at 2:17. I scrolled the area where 2/7 2:17 comments would be and I didn’t see one from you marked as being at that time. I searched the whole discussion for 2:17 and didn’t find anything by you, then I searched for Loki, and didn’t find anything at 2:17. I have generally read your comments here though (actually all of the comments), so if your talking about the comments to this blog post, I’m sure I’ve read it.
re: “If you chose not to believe it after doing the research, that’s fine, but just asserting that it’s not in the “direct constitutional . . . text” is, um, ill-informed.”
No asserting its not in the direct constitutional text is literally true. OTOH it may not be very significant, if its seen as being indirectly but obviously within the text, and also in the context of the legal tradition that calls for such deference to precedence from higher courts as being a central principle of law.
The words “federalism” and “separation of powers”, are not in the constitution but the concepts are very directly there, a separation of powers is explicitly spelled out. Stare decisis and deference to superior courts are one step removed from that. They can be reasonably inferred from the context that the constitution was passed in, but it isn’t explicit in the direct text. Other legal principles or long standing court decisions are at a further remove from the direct text.
But I would regard my initial question as being answered. In the context you mention, can reasonably be interpreted as requiring deference to superior courts. The point about “direct text” is mostly just a technical one, except to the extent that any other interpretation gains any traction, which doesn’t seem likely at the moment.
February 9, 2011, 4:43 pmloki13 says:
Apologies- 5:17pm
February 9, 2011, 4:49 pmOrenWithAnE says:
The fitness of the consequence to the act is a question for the legislature, not the judge. That is, it’s an element of justice (not disputing that) but not one that is properly before a court. In other words, if the legislature deems the penalty for simple possession of weed to be 30 days in jail when the fit penalty is $100 fine, then it is surely unjust but the source of that injustice is not the judge imposing the sentence but the legislature that enacted it. The judge may not depart from the mandated sentence just because he feels like it.
That is to say, for each injustice, there is/are a proper venue(s) and there are other venues that, despite their sympathies, are simply unsuited to dealing with it. In the case of an improper higher court ruling (Plessey), the venue is in the higher court. In the case of an unjust law the venue is in the legislature or in the populace through election or referendum (decrim). In the case of a pervasive issue, the venue is in the amendment process (13A).
Not every injustice is one that the court hearing can remedy.
(1) There are two notions of predictability here. One is temporal and the other is random. When the Court has made a mess of various doctrines, it has impeded temporal predictability (see, e.g. the famous complaint about the ‘true course of law in the 4A’). That is a different matter, it seems, from the random-unpredictability that occurs when different officials or judges can impose different rules on different citizens.
(2) No one said that predictability *always* trumps other concerns, but it is a large structural concern that weighs heavily. As a thought experiment, consider two situation that are unjust:
(a) Alcohol usage is prohibited. Citizens are unjustly forbidden from exercising this liberty but otherwise go on with their lives.
(b) Alcohol usage is not prohibited. A citizen drinks in his own home and is then arrested and jailed for disorderly conduct because the responding officers and presiding judge disagree with the rule permitting alcohol and would prefer to prohibit it.
This is the reason that random-unpredictability is far more unjust that the structural variety. In (a), at least there is democratic recourse. In (b), it’s just a crapshot.
February 9, 2011, 4:53 pmOrenWithAnE says:
I think the legal traditions at the time of the Founding were intended to be codified by those words. The term ‘inferior’ means what it meant to the legal profession at that time, which was a court that had to rule in line with the rulings from those above it.
They have not so *ruled* because it was never an issue before them (in what case could it come up, you can’t sue a judge for not following precedent due to absolute judicial immunity).
They have, however, repeatedly implied it. The most clear case was actually one in which the SCOTUS affirmed the lower court for going against precedent while simultaneously scolding it
From the majority:
From the dissent:
http://scholar.google.com/scholar_case?case=4986456804213944237&hl=en&as_sdt=2&as_vis=1&oi=scholarr
February 9, 2011, 5:11 pmOrenWithAnE says:
I wouldn’t consider that to be an amendment, it would be a purported amendment that was not passed because it did not meet the requirements of Art V (just as much as the ERA is not an amendment because it failed to get enough State legislatures).
February 9, 2011, 5:13 pmMichael Ejercito says:
On that note, I suspect the Supreme Court’s equal protection holding in Loving v. Virginia would be dispositive in such a case.
And of course, precedent does not foreclose cases on the basis of other laws or constitutional provisions not addressed by the precedent at hand (such as Baker and the applicability of the freedom to contract in regard to SSM).
Indeed, a criminal court could simply ignore an appellate court overturning a conviction, if vertical stare decisis did not apply.
February 9, 2011, 5:27 pmTim Fowler says:
OrenWithAnE – Re: amendments
I didn’t assert that there was an actual amendment that was unconstitutional. I responded to the idea that an amendment couldn’t be unconstitutional. According to Article V, there are requirements, so an amendment could indeed be unconstitutional. The fact that such an amendment was never submitted for a vote, is irrelevant to that point.
February 9, 2011, 5:29 pmloki13 says:
No. Here, you are incorrect. Separation of powers is not explicitly spelled out. We infer it by contemporaneous writings and the structure of the Constitution. But when we invoke it as a concept in other cases (as opposed to simply stating things like the Executive can veto legislation), we are removed from the text. In the penumbras and emenations. Admittedly, they are very firm p&es, but still.
Same with stare decisis. When Article III authorizes courts (and inferior courts) what does that mean? Do we set up an automatic coin-flipping machine and call it a court? Do we set up a civil law system? Do we set up inferior courts that review the Supreme Court? Or do we know, from contemporaneous materials and the practice immediately at the time (intent + original expectations + reliance interests at this point) that this means a common law system of with stare decisis?
February 9, 2011, 5:57 pmOrenWithAnE says:
No, it wouldn’t be an amendment at all, not an unconstitutional amendment.
February 9, 2011, 6:16 pmKanageloa says:
This lower court judge is an arrogant buzzard. Why don’t we make him King of Loudon County? Naw, lets just make him take his Prozac, give him a jalapeno enema and call it even.
February 10, 2011, 12:24 amAaron says:
OrenWithAnE, loki13: thank you both for such well reasoned and informative responses. I’m still trying to tease apart in my mind what features of our justice system are necessary for it to function well, and which are merely contingent.
February 10, 2011, 3:38 amloki13 says:
Aaron,
No worries (and thanks). I think that studying and practicing law has led me to appreciate a certain Burkean conservatism, especially regarding the law. We follow precedent because there’s a reason those precedents have been set, and those precedents have been set over a number of years, refined and tested over scores or hundreds of cases, and there is usually a good reason to follow them. Put another way, when an individual judge suddenly decides that the precedent is bad, it is often good for the judge to really question why he has suddenly had this insight, and why all these judges that have gone before him did not feel this way. Standing on the shoulders of giants and all that.
Another way to look at this is the old maxim that bad facts make bad law. The law is about setting default rules that do the most amount of good for the largest amount of situations (or, to put it in a Law & Economics framework, the default rule encourages efficiency, such as an efficient allocation of resources). When a judge crafts a precedent to do justice in an individual case with extreme and sui generis facts, they might be crafting a rule that creates problems for the vast majority of cases. To consider a black letter example, in contracts, the risk of loss where neither the buyer nor seller is to blame (if not assigned by the contract) is assigned to the breaching party even if the breach had nothing to do with loss. This might seem unfair (you miss the target deadline by a day, the merchandise is destroyed in transit through an act of god) but since the loss has to go somewhere, might as well assign it to the breaching party. And this creates an incentive for parties to more efficiently work around this default rule since it is known and applied via stare decisis (contract around by reaching agreement, purchase insurance).
February 10, 2011, 11:36 amTim Fowler says:
loki13 – Re: “Separation of powers is not explicitly spelled out.”
To an extent it is. The different branches are directly given different powers.
OrenWithAnE – Re: “No, it wouldn’t be an amendment at all, not an unconstitutional amendment.”
If it was actually passed according to the normal amendment process, it would be an amendment until and unless the courts struck it down. Just as a regular statute law that was clearly unconstitutional would be a law until the courts ruled it so.
Well in a certain sense its not a law or an amendment, it goes beyond the powers of congress to pass such a law, and of congress and the state legislatures to pass such an amendment, so the act can in a sense be considered to be null from the moment its passed, but in the real world nullification arguments are unlikely to take you very far, you’ll likely need actual court support to get anywhere on such issues.
February 21, 2011, 10:59 pm