Originalism and Stare Decisis in the Lower Courts
The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The unique status of the Supreme Court, perched atop our judiciary, affords its members the leeway to make either decision.
Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedents are originalist or not. No matter how wrong a given Supreme Court case is from an originalist perspective, the precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Generally, only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.1
An originalist circuit judge has free jurisprudential rein only in the rare case of first impression, where neither the Supreme Court nor the circuit court has considered the constitutional question. Even then, she would still be at a comparative disadvantage. Circuit courts seldom receive the wealth of originalist briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report— without the benefit of the adversarial process.
In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.
