What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?

In his initial reaction to the Sixth Circuit decision upholding the mandate, Cato’s Ilya Shapiro made the following comment:

While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does—a “reasonable fit” between the means it chooses and the ends of regulating interstate commerce—to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law.

To me, the striking thing about such criticisms is that they take the analysis in Judge Sutton’s opinion as if they represented Judge Sutton’s personal views. But Judge Sutton’s opinion is pretty clear that he’s not providing his own opinions: the rational basis test was the Supreme Court’s in Comstock. Similarly, Judge Sutton’s statements about as-applied challenges have been much criticized on this blog, but in fact are directly rooted in recent Supreme Court precedent, see, e.g., Sabri.

The underlying question, I think, is what conservatives and libertarians want conservative lower-court judges to do with liberal Supreme Court precedents. There are two basic options, I think. My sense is that some conservatives and libertarians want those lower-court judges to bend the law to try to correct what they see as the Supreme Court’s mistakes. They should construe ambiguity to push the law in the right direction, and generally try to push and prod the law in to make it better (“right” and “better” at least from a conservative/libertarian perspective). From that perspective, Judge Sutton’s opinion is a failure, much like Judge Easterbrook’s opinion in McDonald was a failure.

On the other hand, others would say that lower-court judges should apply those liberal Supreme Court precedents honestly and fairly just as they should all Supreme Court precedents. From this perspective, lower court judges should be ignoring the perceived correctness or incorrectness of Supreme Court precedents (or their political valences) and instead should just apply them as legal technocrats would: The job of lower court judge is just to be faithful to the Supreme Court’s precedents, and not to be faithful to some broader vision of the Constitution. From that perspective, Judge Sutton’s opinion is a success, I think, much like Judge Easterbrook’s opinion in McDonald was a success.

As regular readers no doubt can guess, my own view is the latter. As I see it, a conservative Reinhardt is still a Reinhardt: Given that no two judges agree on the “right direction” of the law, letting every lower court judge decide cases in furtherance of their own vision of rightness is perilously close to just letting everyone do what they feel like doing. Of course, this doesn’t mean that the Supreme Court can’t change the law: The Justices aren’t bound by their own precedents, and they are free to change course if they think it proper to do so. But lower court judges have a different job than do Supreme Court Justices: They’re stuck following existing Supreme Court law, and we should want them to follow that law whether we like that law or not.