Orin Kerr has responded to the point that judges are bound by oath to support the Constitution instead of precedent. He really has no good argument against this point except to say that it would lead to instability. “Your rights would only be what the judge you happened to draw thought was the correct answer at the particular time you happened to ask him.” There are two problems with this argument.
First, it’s a non sequitur. A judge interprets the Constitution according to certain interpretive principles and rules—originalism, say, or later-amendments-trump-earlier-provisions, et cetera. These rules give an admittedly imperfect stability to their decisions. One of those rules is the rule of stare decisis, but it is only one of the several tools judges use to interpret the law, and which help give stability to their decisions. It simply does not follow at all that from (1) the premise that a judge must interpret the Constitution, rather than obeying wrong precedent, that (2) the result will be chaos. Rather, a judge who believes a precedent is wrongly decided will come to that conclusion by the application of legal rules and principles, which will give stability to his or her decisions. Prof. Kerr is creating a straw man when he says that people who believe lower courts are bound by the Constitution rather than by precedent are arguing for judges “decid[ing] every case from scratch.” Nobody argued that, and nobody is arguing that. They are arguing for fidelity to one text rather than to another.
Second, exactly the same danger of “chaos” haunts a judge who interprets existing precedent. A judge must read the precedents and interpret them just as he has to read and interpret the Constitution, and must do this for himself, right? Why can a judge be trusted to independently read and interpret the precedent and not be trusted to independently read and interpret the Constitution? Prof. Kerr sees chaos resulting from a judge “following…the true Constitution as [he] see[s] it,” because “[e]very new case and every appeal would hinge on what the judges thought in that case,” but he doesn’t see chaos when a judge follows the true precedent as he sees it, even thought every new case and every appeal must hinge on just what the judge thinks is the proper application of precedent in that case. To put it another way—if chaos results from judges exercising independent judgment in interpreting the words written on the Constitution’s pages, why does not chaos equally result from judges exercising independent judgment in interpreting the words written on the pages of the U.S. Reports? A judge trying to interpret the word “commerce” in the Commerce Clause and a judge trying to interpret the word “commerce” in United States v. Lopez bring exactly the same linguistic and legal tools to their tasks!
In my view, judges are not “bound by Supreme Court precedent” in any respect except where that precedent embodies and articulates the law. Lawfulness is the quality that distinguishes valid precedent from invalid precedent. And what binds in cases of correct precedent is that precedent’s lawfulness, not the mere fact that it happens to be precedent. For example, Dred Scott remains a precedent, but is not law, because whatever lawful character it might originally have had has been overcome by subsequent events. It is therefore not binding, not because it is no longer precedent (since obviously it is still precedent), but because it is no longer law. (And if there are respects in which Dred Scott was correct and was not undercut by amendment—perhaps on some issue of standing or something—it remains an articulation of the law, and remains valid, binding precedent on those points because of its congruence with the law.)
Lower courts are not bound by oath to support Supreme Court precedent, but to support the Constitution. Insfoar as precedent diverges from the Constitution, my admittedly radical view is that lower courts are bound by the Constitution and not the precedent. Thus if, say, the Supreme Court were to announce a proclamation that Barack Obama is president for life, lower courts would be under no obligation to obey such a pronouncement.
Does this mean there would be no hierarchical restraint on lower courts? Of course not. The Constitution itself provides that the Supreme Court is supreme and that means that a lower court that decides a case contrary to the Supreme Court’s precedent is subject to reversal, and a lower court is obliged to yield in this respect to the Supreme Court for precisely the same reason that it is not obliged to respect Supreme Court precedents that fail to accord with the Constitution—because the Constitution itself so provides. Thus a lower court judge’s obligation to support the Constitution both liberates and constrains: the judge must obey not the precedent, but the Constitution; yet if reversed by the Supreme Court, he must yield because the Constitution itself makes the higher court supreme. This obligation to yield to it as supreme is not the same thing as an obligation to obey its invalid precedents.
To anyone who does not, contrary to Prof. Kerr, regard Supreme Court precedent as ipso facto law, it’s a complicated question why wrong precedent is binding. It’s one with which Lincoln famously struggled in his speech on the Dred Scott case. His rejection of Dred Scott as inconsistent with the true meaning of the Constitution was the basis of accusations—framed in practically the same terms as Prof. Kerr pronounces—that Lincoln proposed to violate the Constitution. Yet Lincoln was right that
Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”
We believe…in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.
Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.
But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.
To Prof. Kerr, on the other hand, there is simply no such thing as a correct reading of the Constitution; there is just that reading of the Constitution pronounced by a Supreme Court majority, and it is what we are bound to respect. Since there is no gap between the law and the will of the ruler, there can be no gap between the lower court’s obligation to obey the Constitution and its obligation to obey precedent; they are one and the same. Thus if a Supreme Court majority were to, say, declare Barack Obama to be president for life, that would in fact be the Constitution, and to regard it as unlawful or unconstitutional would be a meaningless or self-contradictory statement; nothing more than articulating one’s “own vision of rightness”—that is, an utterly subjective impulse. (Prof. Kerr, as we know, regards all normative statements as mere subjective preferences.) But where does this obligation come from?—I mean, this supposed obligation of the lower court to obey the Supreme Court? Is it merely because the Supreme Court has said so? But the lower court judge says the opposite, and how are we to choose between these two assertions of power? The answer cannot be, by reference to the words of the Constitution, because we have, ex hypothesi, rejected the idea that the words of the Constitution have meaning separate from the courts’ interpretation thereof. It can be therefore a mere subjective personal preference for the Supreme Court instead of lower courts—utterly arbitrary.
Update: The Curmudgeonly Counselor (seen here in a rare photo) thinks my view is overly narrow because it would mean lower courts are obliged to follow the Supreme Court only in particular cases. That isn’t my point, but the point I’m making is sufficiently subtle that I should clarify. My view is that stare decisis is not a principle of hierarchical order within the judiciary, in the way that a writ is. We might divide the category of Binding Rules into two categories—let’s call them orders and principles. Orders are like a general’s command to a private; they are hierarchically binding, and they are to be followed simply because the superior has ordered it. Not obeying an order is a punishable offense; the private is not free to decide whether to follow an order or not. Principles, by contrast, are binding because, and to the extent that, they are rationally justified, and the decision whether to follow that principle rests on the judgment of the party who is to follow it.
Stare decisis is the latter. It is a principle of rationality, a tool of interpretation, in the same way that a legal maxim or a principle of logic is. As we know, the only part of a court decision that is binding in the sense of an order is the judgment. The rest is the reasoning—which is subject to analysis, refinement, and application in a future case. And the judge in the second case exercises his independent judgment in deciding how to do this, or even whether to do this. He is not subject to punishment for not following precedent. He is obliged to follow precedent because it is a principle of reason, in the same way that he is obliged to follow other interpretive rules—not because he is ordered to do so by a superior, but because that is what the discipline of law inherently requires. Thus to speak of interpretive precedent as “binding” on lower courts is misleading, because it is binding in a different way than an order. A legal precedent is binding on a future court because, and only to the extent that, it is a correct interpretation of the law.
So while it is true that I am saying that in hierarchical terms, a lower court is only “bound” by the possibility of reversal, I am not saying that a lower court would be free to do whatever it wants. Rather, a lower court follows precedent just as it would follow any other legal principle, like the exclusio alterius rule or the ejusdem generis. If they lead to absurd results, or results incompatible with the Constitution, then the court is under no obligation to apply these interpretive tools, because the court’s first obligation is to the Constitution. To elevate precedent into a hierarchical order, rather than an interpretive principle, is to override the federal judge’s oath to support the Constitution.
Let me add that reference to the common law tradition incorporated in the Constitution’s reference to the “judicial power” strengthens my position, not Prof. Kerr’s. The common law courts of the 18th century regarded precedent not as The Law, but only as evidence of what the law might be; they regarded precedent as I’ve said, as only a tool, not as a principle of obedience from one court to another. Thus Blackstone explains that courts are obliged to follow the law, not the precedent, and that the bindingness of precedent arises only from whether that precedent is a faithful application or interpretation of the law:
where the former determination is most evidently contrary to reason.... [E]ven in such cases the subsequent judges do not pretend to make new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd and unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as had been erroneously determined.... [T]he law and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we make take it as a general rule, that the decisions of the courts of justice are the evidence of what is common law....
1 W. Blackstone, Commentaries *70