Lofton case

[Edward B. Foley]

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superseded by subsequent developments, including non-judicial social 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.

Ned

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