I think it’s substantively right. It’s basically just a little leeway for when something is clearly unconstitutional and I’m going to read into reasoning (of except) that it’s no small thing and yet precedent would say it is constitutional.
I think the answer is, your role as inferior court judge obliges you to respect the decision, which is morally unconscionable. This may justify some kind of disobedience or it may require a principled resignation.
Alternatively, one of the (fairly extreme) ways Congress can check the Court is by openly announcing that it will not impeach a lower court judge who ignores a particular precedent
Is there scholarship about reluctant judges and applying something morally repugnant like Plessy? Or compared to conservative judges having to respect Roe?
Or when scotus decides a president can engage in criminal acts, elected officials can be given gifts after they use their powers to grant favors, and that limiting corporate spending in elections treats them like corporations and not people.
Whether the lower court ruling upholds or overturns precedent, the losing party can appeal to the supreme court. So wouldn't it just end up back in front of SCOTUS? And if SCOTUS issues a direct ruling in favor of the appellant, how would the lower court become re-engaged in the now settled case?
I was waiting for someone to say this! Yeah I’ll just say this would make it legally obligatory for lower courts to disregard an overruling of Wong Kim Ark
I think the global question, though, is how would we expect most courts to actually behave if they believed this? Would they be more likely than SCOTUS to get the question right? Or would they disregard mostly good SCOTUS precedents?
Well, based on the Fifth Circuit already embracing this approach in recent years, I don't have a lot of confidence in it. Of course, I'm sure some courts could do a better job of getting it right than the current SCOTUS. But that's also my bias talking.
I mean we could see massive circuit numbers of circuit splits on a wide variety of issues. Which then takes us back to SCOTUS…pope/antipope situation, except with law. By this logic, we’d still have Roe in the First Circuit but not in the Fifth. Some Ninth Circuit judges would ignore Bruen.
The closest comparison I can think of is when, at the height of Covid, the German Federal Constitutional Court decided the European Central Bank has exceeded its competence, that the Court of Justice of the EU was wrong to have held otherwise, and that the German court was the only correct one.
So I think then the onus is on other political actors to mount defiance and not lower federal courts. A judge though should write a screed saying its erroneous while noting their obligation to rule otherwise. They can also narrow the definition maximally.
When we're debating "it's bad because 5th Circuit" and "it's good because SCOTUS already read Section 3 of the 14th and are poised to read Section 1 out as well", that's a pretty damn short thread.
Like, as in he thinks judges aren't bound by law? Which pieces are you thinking about? The two I love are Violence and the Word and Nomos and Narrative
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Add that one to the list to acquire. Thanks.
(Not that federal judges are interested in or capable of carrying out collective action…)
I would say, do we want a system wherein the Court is incapable of performing its function of harmonizing the law? Do we want to have a Supreme Court?
I think tugging on that thread leads you to "we're in a state of constitutional collapse" though
Like, as in he thinks judges aren't bound by law? Which pieces are you thinking about? The two I love are Violence and the Word and Nomos and Narrative