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June
13, 2003
David
Vest
Bush
Roadmap to What?
Ron Jacobs
The Iranian Revolution, Reloaded?
John
Chuckman
The Man Who Wasn't There
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Six Months Before War White House Silenced Critics of WMD Intelligence
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Leon
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Ashcroft's Cruel Version of America
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Landau
Shiite Happens
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Guthrie
Then and Now
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Bush's Wars
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June
14, 2003
Rebellious Judges
Resisting Bad
Precedents
By JOANNE MARINER
Don't be fooled by their dark robes and serious
demeanors: some judges are rebels. Their acts of insubordination
may be quiet ones, but they still shake the foundations of the
judicial hierarchy.
If strict obedience to the Supreme Court's
rulings is the best measure of judicial docility, then there
is reason to view the U.S. Court of Appeals for the Ninth Circuit
as the country's most rebellious appellate tribunal. In case
after case, the Ninth Circuit is reversed by the Supreme Court,
often by a unanimous vote.
But even by Ninth Circuit standards,
an unpublished decision issued a few weeks ago is worthy of note.
In a case involving California's harsh "three strikes"
sentencing law, under which defendants face mandatory life imprisonment,
two judges expressed passionate disagreement with the applicable
Supreme Court precedents.
One of the two, Judge Stephen Reinhardt,
said that were it not for the Supreme Court's recent decision
to uphold the California law, he would have voted to deny the
prosecutor's motion for summary disposition of the case. "I
believe the sentence is  both unconscionable and unconstitutional,"
he explained.
The other, Judge Harry Pregerson, took
a more overtly defiant approach. "In good conscience,"
he wrote, "I can't vote to go along with the sentence imposed
in this case."
While neither judge directly dissented
from the panel's decision --Judge Reinhardt concurred and Judge
Pregerson said that he was writing separately --their reluctance
to follow binding Supreme Court precedent was clear. Their actions
were not terribly rebellious, in the end, but their views certainly
were.
"The Supreme
Court Has Erred"
Some judges have been far less cautious
in challenging what is, in their view, wrongly decided Supreme
Court precedent. In fact, Judges Pregerson and Reinhardt come
off as rather timid compared to an Alabama judge who, in 1983,
refused to strike down a school prayer law.
That judge, explaining the ruling, put
the matter bluntly. As he proclaimed, with no false modesty,
"[t]his Court's independent review of the relevant historical
documents and its reading of the scholarly analysis convinces
it that the United States Supreme Court has erred in its reading
of history."
The rebellious judge's decision was reversed
on appeal, highlighting one of the main pitfalls of the defiant
approach: it doesn't get you very far. Any debate between a lower
court and its hierarchical superior is inherently unequal. The
lower court can appeal to logic, reason, common sense, interpretative
canons, and constitutional doctrine, but the higher court's preferences
can still carry the day.
Vertical Stare Decisis
The lower courts' duty to abide by Supreme
Court precedent falls within the doctrine of stare decisis. Given
the perceived weakening of stare decisis in recent decades, it
is important to distinguish between the doctrine's two forms:
first, the respect a court owes to its own prior decisions, and
second, the respect a lower court owes to the decisions of courts
above it in the judicial hierarchy.
The first kind of stare decisis, sometimes
referred to as "horizontal" stare decisis, has been
the more prominent of the two, both in the case law and in academic
commentary. There has been much debate over just what degree
of deference the doctrine should command, but generally its binding
force is understood as akin to a strong presumption, rather than
to an inflexible rule of decision.
The duty imposed by "vertical"
stare decisis, as the second form of the doctrine is called,
is generally acknowledged to be stronger. Few commentators question
the lower courts' obligation to follow the rulings of higher
courts; indeed, not even the most vociferous critics of stare
decisis in its horizontal form take this position. In contrast
to the flexibility usually recognized under the horizontal form
of the doctrine, the duty prescribed by vertical stare decisis
is frequently referred to as "absolute."
"Unless We Wish
Anarchy to Prevail"
In Hutto v. Davis, a 1982 case, the Supreme
Court endorsed a robust view of vertical stare decisis. Warning
of the perils of lower court disobedience, the Court conveyed
an almost apocalyptic vision of confusion and disarray. As it
explained: "unless we wish anarchy to prevail within the
federal judicial system, a precedent of this Court must be followed
by the lower federal courts no matter how misguided the judges
of those courts may think it to be."
Most foreign judges would be amused at
these remarks. In civil law jurisdictions --that is, in most
European and Latin American countries --there is a very different
conception of the judicial function. In theory, the comprehensive
legal codes used in such jurisdictions avoid the need for judicial
interpretation --or the exercise of judicial discretion --and
thus it is unnecessary for one judge's interpretation to bind
future judges.
In many countries, therefore, judges
routinely flout the contrary precedents of higher courts. Indeed,
the absence of a vertical principle of stare decisis is vividly
illustrated by the response of one Italian trial judge who attended
a lecture on courts in the United States. Hearing a defense of
stare decisis, he exclaimed, with considerable outrage: "My
independence as a judge would be completely undermined if I had
to follow the decisions of the court of appeals."
As the Italian judge implies, our system
of law would not break down without strict judicial obedience
to the rulings of higher courts. Its nature would, however, be
changed if the principle of vertical stare decisis were to be
accorded less deference.
The civil law understanding of judicial
independence elevates the autonomy of individual judges at the
expense of the judiciary's strength as an institution. The principle
of stare decisis constrains individual lower court judges but
in doing so, it shifts power to the Supreme Court and the judiciary
as a body. It turns a mass of uncoordinated decisionmakers into
a coherent whole: a branch of government capable of speaking
with one voice.
Certainly school desegregation would
never have been accomplished, or probably even attempted, without
a strong vertical stare decisis principle to keep recalcitrant
lower court judges in line.
The Limits to Judicial
Obedience
Yet even if one acknowledges that, in
general, lower courts should follow the ruling of higher courts,
the question remains: does this principle have limits?
If a Supreme Court ruling is clearly,
unequivocally wrong --if it is an offense against the Constitution
--should the lower courts apply it without demur? If the Court
were to hold that black is white, up is down, and the Second
Amendment protects an individual right to an AK-47, must lower
court judges obediently follow suit?
Without attempting to answer these questions
here, I'll simply note that they hinge on the same interpretative
issues, discussed by Professor Akhil Amar and Professor Vik Amar
in a series of prior FindLaw columns, that relate to horizontal
stare decisis. The fundamental question is to what extent stare
decisis, in both its vertical and horizontal forms, is constitutionally
mandated, and to what extent a judge's direct understanding of
the Constitution should take precedence.
I'll also note, finally, that questions
of vertical stare decisis are likely to become more prominent
as the Supreme Court swings further to the right, assuming that
the composition of the lower courts does not change with equal
speed. If the Bush administration succeeds in appointing a bevy
of extremely right-wing justices to the Court --Scalia junior
and Thomas redux --many of us may hope that Judges Reinhardt
and Pregerson begin to take a stronger stand.
Joanne Mariner
is a human rights attorney and regular CounterPunch contributor.
She is the author of No
Escape: Male Rape in US Prisons published by Human Rights
Watch. An earlier version of this piece appeared in FindLaw's
Writ. She can be reached at: mariner@counterpunch.org.
Yesterday's Features
David
Vest
Bush
Roadmap to What?
Ron Jacobs
The Iranian Revolution, Reloaded?
John
Chuckman
The Man Who Wasn't There
Jason Leopold
Six Months Before War White House Silenced Critics of WMD Intelligence
Michael
Leon
Missing Weapons, Shrinking Bush and the Media
Negar Azimi
Ashcroft's Cruel Version of America
Saul
Landau
Shiite Happens
Hammond
Guthrie
Then and Now
Steve
Perry
Bush's Wars
Web Log 6/13
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