Verification Re: your understanding of precedent

stokeoo1 at TC.UMN.EDU stokeoo1 at TC.UMN.EDU
Tue Jul 18 23:35:50 PDT 2000

John Rogers raises some interesting and important points.  He
writes that "[t]he answer to [Paulsen's] question [why *following*
believed-erroneous precedent is not a violation of a judge's oath]

> is highly analogous to the answer to the
> question why a lower federal court judge should ever vote against his or
> her view of the Constitution when the Supreme Court has ruled
> otherwise.  The pyramidal system of courts imposes on lower court judges
> the obligation to decide in a way so as to avoid being overturned.

I wonder if that is so clear.  The pyramidal system of courts doesn't
itself impose any obligation on lower court judges.  It just means that
they can be reversed (and likely will be) if judges of reviewing courts
disagree with them.  That's what reviewing courts are for.  A better
argument might be that fidelity to reviewing courts' precedents is
inherent in what it means to be an "inferior" court.  But this doesn't
quite follow either.  All that follows from inferiority is the capacity to
be reversed by reviewing courts in the pyramid.  It should not alter
whatever *duty* would otherwise exist as a matter of the oath clause.
 *If* that duty requires a judge -- any judge -- to prefer the
Constitution to a faithless interpretation of it by another actor, how
could the fact of a chain of appellate hierarchy (a creature of
Congress) trump it?  Moreover, unlike "lower" executive branch
officers, inferior courts are not *subordinates* of the Supreme
Court, in the sense of merely acting as agents of a principal.  The
Constitution makes each federal judge constitutionally independent.

Another argument might be that, at least as to the Supreme Court's
precedents, this is implied by the word "Supreme."  Again, however,
the conclusion does not necessarily follow.  All that follows from
"Supreme" is that no other court has authority to review and revise
the Supreme Court's judgments.  It does not even require that the
"Supreme" Court have appellate jurisdiction over all lower court
decisions.  (Opening another can of worms here, I know.)

>   No one
> would take a lower court judge's conclusion that "the Supreme Court has it
> wrong but I must follow the Supreme Court" to be an oath
> violation.

True as a descriptive matter.  But maybe there's something wrong
with this conventional wisdom.

> Similarly, the system of stare decisis requires that decisions
> comport with most, but not all, prior holdings of a majority of the same
> court.  The policies underlying stare decisis require this, just as the
> policies underlying the pyramidal system of courts require lower courts to
> follow the decisions of higher courts.  So it cannot be said that a Supreme
> Court justice's conclusion that "the majority in previous case x had it
> wrong but I must follow that decision" is an oath violation.

But who made "the system of stare decisis" superior to the text of
the Constitution?  How can "the policies underlying stare decisis," if
not themselves of constitutional status (and if a theory of stare
decisis is not itself imbedded in one's theory of constitutional
meaning, an important suggestion of Christopher Schroeder's and
Tom Grey's posts), trump what would otherwise be the judge's
constitutional duty?

> The answer to the question whether a justice should follow a majority
> holding of an earlier case (i.e., whether there is an exception to stare
> decisis) should in concept be identical to the answer whether five
> like-minded justices would follow -- or overrule -- the precedent.  That is
> a question of stare decisis law, or what I have called "overruling law," a
> body of law to which the justices have devoted significant attention.  This
> body of rules itself is law (I say this in response to Richard Hills' last
> sentence) and thus should apply no more (and no less) to lower courts than
> to the Supreme Court.

I am intrigued by this, though I am not sure I understand it.  Could
you explain further what you mean by "stare decisis law" or
"overruling law."  Are you saying that when five *other* justices
would vote to overrule, it's okay to be the sixth?  Is this a Thayerian
(or Thayer Lite) "Rule of Six" (two-thirds majority) to overrule?
And the role of a lower court judge is to anticipate what
five Supreme Court justices would do?

I am also intrigued by the statement that "This body of rules itself is
law."  (Defining "law" how?) If I understand this correctly, the
argument seems a little circle.  It seems to me that the doctrine of
stare decisis, as articulated by the Supreme Court, does not require
adherence to the doctrine of stare decisis, as articulated by the
Supreme Court.  I'm My Own Grampa.

Michael Stokes Paulsen
University of Minnesota Law School

 John M. Rogers
> Thomas P. Lewis Professor of Law
> University of Kentucky College of Law
> Lexington, Kentucky  40506-0048
> tel. 859-257-3370
> e-mail: jrogers at

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