Last month, Justice Thomas wrote (another) dissent from denial of certiorari in a Second Amendment case, Friedman v. City of Highland Park. This time, Thomas expressly warned of lower court “noncompliance” with the Court’s case law. Friedman raises a question taken up in my new draft paper: do lower courts have some authority to narrow Supreme Court precedent?
I’ve recently posted a new draft paper, “Narrowing Supreme Court Precedent From Below.” Here’s the abstract:
Lower courts supposedly follow Supreme Court precedent — but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent court-of-appeals decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice — which I call “narrowing from below” — challenges the authority of higher courts and can generate legal disuniformity. But it is also beneficial. Narrowing from below allows lower courts to update obsolete precedents, mitigate the harmful consequences of the Court’s errors, and enhance the transparency of their decision-making process. This Article contends that narrowing from below is generally legitimate when lower courts adopt reasonable readings of higher-court precedent, even though those readings are not the most persuasive ones available. This conclusion holds true — with some significant modifications — under multiple scholarly models of vertical stare decisis, including models that view higher-court rulings as legally authoritative, comparatively proficient, or usefully predictive. Understanding narrowing from below as a legitimate activity also points toward a new “signals” model of vertical stare decisis. Under this model, lower courts follow the Court’s relatively informal cues to resolve ambiguity in conventional precedent, including by narrowing from below.
Any thoughts most welcome!
Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching. As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.
Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.
But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well.
The Supreme Court is becoming increasingly accustomed to reversing lower court rulings that deny qualified immunity to police. Just a few weeks ago, for instance, the Court attracted a lot of media attention in Mullenix v. Luna, which summarily sided with a police officer accused of using excessive force.
But for all the attention that Mullenix and similar decisions have garnered, the discussion has overlooked a critical procedural issue: when the Court reverses on qualified immunity because relevant law is unclear, what happens to the lower court’s separate determination that the Constitution was violated?
Under the Court’s qualified-immunity cases, there is a strong argument that lower-court merits determinations should remain intact even after the Court reverses on qualified immunity. This conclusion, if adopted, would substantially alter the implications of the Court’s vigorous enforcement of qualified immunity, including its recent use of summary reversals.
Fisher v. University of Texas, raises an important question about the constitutionality of affirmative action in university admissions, but it also poses a jurisdictional riddle. When Fisher came to the Supreme Court a few years ago, there was fairly extensive debate, including at oral argument, as to whether the Court had jurisdiction to hear the case. But in ruling in favor of the plaintiff and remanding the case, the justices said not a word about jurisdiction. Last year, I wrote a post asking whether Fisher I should be understood as a precedent on jurisdiction. Now the case is back at the Court, and UT is again pressing jurisdictional arguments. Will these renewed arguments have any sway, and should they?
Can constitutional theory be both persuasive and determinate? A recent, must-read exchange between Michael Dorf and Larry Solum implicitly raises this question. In the exchange, Dorf ultimately posits the “Brown test,” which demands that any constitutional theory must make possible the result in Brown v. Board, but need not require that result. The exchange (which Paul Horwitz has already collected and commented on here) illustrates that there are importantly different ways of assessing a constitutional theory’s determinacy. Below, I outline relevant features of the Dorf/Solum posts, explore the relationship between theory and determinacy, and suggest a reformulation of the Brown test. In short, I suggest that evaluations of constitutional theories should emphasize what the theories most encourage, as opposed to what is possible, necessary, or reasonable under those theories.
Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act’s contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.