Edward B. Foley
foley.33 at osu.edu
Sat Jan 31 11:08:24 PST 2004
I might express Walter's point about lower court judges somewhat more
strongly than he does. It seems to me that the obligation of lower-court
judges to be faithful to Supreme Court precedents is more than just an
efficiency point about the power of reversal. It's a fidelity obligation
associated with the distinctive role of being a lower court judge in a
hierarchical judiciary -- at least ours as (I think) traditionally
conceived. This obligation, I would suggest, is not merely to follow S.Ct.
precedents begrudgingly, or as narrowly as one can get away with, but to
implement them as best as one can according to their own logic. (Dare I
say that this sounds a bit Dworkinian?)
To be sure, a lower court judge might question a old S.Ct. precedent as
superseded by subsequent developments, including non-judicial social
developments, although Agostini would require leaving overruling to the
Court. Likewise, in agreement with Larry Solum, a lower court judge could
point out that taking the rationale of a precedent to its "logical"
conclusion would lead to pernicious consequences unforeseen by the Court
when it articulated the rationale (or, similarly, that the "logic" of two
S.Ct. precedents if both taken to their extremes would be in irreconcilable
tension with each other). But that kind of faithful attempt to implement
the precedents, to make the best of them as they would want to be
implemented , is altogether different from what I take the Eleventh Circuit
in Lofton to have done. Disagreeing with Lawrence in its core
reasoning -- reasoning that the S.Ct. clearly understood it was
undertaking in Lawrence -- the Eleventh Circuit announced that it was
confining Lawrence as narrowly as it cold because of its erroneous
nature. To me, that's a breach of the fidelity obligation of the
intermediate appellate court to follow the reasoning of Lawrence according
to its own "internal logic."
By the way, for what it's worth, I think this fidelity obligation holds
equally for liberals and conservatives alike. Lower-court liberals should
be faithful to the reasoning of Lopez and Morrison (or other precedents
they don't like) as conservatives should be faithful to Lawrence, McConnell
v. FEC, and so forth.
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