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Tuesday, July 30, 2019

Vertical Stare Decisis

Justice Thomas recently wrote an interesting separate opinion in Gamble v. United States outlining his views on stare decisis. In Footnote Three of his opinion, Justice Thomas stated: "I make no claim about any obligation of “inferior” federal courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court precedent."

I've been wondering about this. Suppose a conscientious judge is presented with an argument that a United States Supreme Court opinion is erroneous. The judge is ultimately bound by the Constitution and not by Supreme Court decisions interpreting the text. (At least this is the argument that Justice Thomas makes about why Supreme Court Justices should not follow their own erroneous decisions.) Why, then, should the judge not state his or her view of the law and present the question for a higher court? 

It's easy to think of practical answers to this question. Because the judge will get reversed most of the time. Because the judge will not get selected for a higher court. Because this will lead to more instability. But what is the principled difference between horizontal stare decisis, which is widely viewed as a flexible standard, and vertical stare decisis, which is widely viewed as an ironclad rule?

Perhaps the answer is that these forms of stare decisis were treated differently at common law. But this claim does not work if you think, as Justice Thomas says, that stare decisis must be understood differently under a written constitution than it was under the common law. Maybe the answer is that Article III's designation of "inferior" federal Cours implies that they must obey Supreme Court decisions strictly. At the Founding, though, Supreme Court Justices sat on "inferior" federal courts, which muddles the textual point. (In any event, this tells you nothing about state judges, who take an oath to the Constitution itself.)

There are some (though not many) instances of an inferior federal court or state court openly defying a Supreme Court precedent. Typically these opinions justify their departure by appealing to the text of the Constitution (though these efforts generally go nowhere). When we will see that move again?   


Posted by Gerard Magliocca on July 30, 2019 at 09:01 PM | Permalink


Just to illustrate, how adherence to the original text, and even to the supremacy of the constitution, wouldn't help in no way:

The fourth amendment provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

End of quotation:

The fourth amendment so, dictates nothing in particular concerning borders ( or searches therein)but, here I quote the third circuit in a case of search at border:

We " have long held that routine searches at our nation's borders are presumed to be reasonable under the fourth amendment " Indeed routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause or warrant...."

End of quotation:

While under the fourth amendment, per se, it would be then considered as unreasonable search of course, for, without any suspicion, or being suspect, a person would be searched,yet,the fourth amendment is silent concerning borders as exemption to the rule, but, it is warranted whatsoever, despite the text.

So, the courts, had to " accomplish the dish " and made a sort of necessary " read in " to the constitution.

So, it can't be otherwise simply.

To the ruling mentioned:



Posted by: El roam | Jul 30, 2019 11:43:26 PM

I can't think of any lower court decisions openly contradicting Supreme Court precedent by relying on the text of the Constitution. I wonder which ones you have in mind?

I do recall, in the same sex marriage context, lower courts ignoring the Court's holding in Baker v. Nelson that there was no constitutional issue with a state not recognizing it. But they didn't do that based on the text of the constitution, did they?

Posted by: Biff | Jul 30, 2019 11:40:35 PM

Important indeed. But one should not forget at first place, that one judge is independent in his discretion and decision. A judge must imply precedent, only when there is total identical similarity between the precedent and the case he treats. Total legal and factual similarity. It doesn't occur so often. What counts, is that one judge, can't ignore, must not ignore, the unique features of one case. It is not permitted in fact. So, being bound by precedent, is not finally such an issue.Good judge, is guided by the right controlling precedent, but not, blindly bound by it.

But, more important : what creates the precedent, is in fact the adherence to the original text. That's where Justice Thomas is simply wrong. For, every judge, as starting point, reads the text, reads the law first. Yet, when the law, doesn't match the case, or, contradicts constitutional principles ( or others ) then the judge, must depart from the text, and form harmonization of legal codes and principles . He must do it. Why ? because he must prevail. A judge can't avoid his duty to prevail, simply because, the original text doesn't match the case ( something that trivially occurs).

So, precedent and original text, don't stand in dialectical relationship but rather, in complementary one. It is naturally so, that laws, don't match cases. Why ? bunch of reasons. Technology evolves. flawed legislation by nature ( in democracy the legislator is typically layman). Lack of predictability. Social and cultural changes without correcting laws in accordance, and more and more....


Posted by: El roam | Jul 30, 2019 10:49:07 PM

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