What If Lower Court Judges Weren’t Bound by Supreme Court Precedent?

Last week’s post, What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?, drew some interesting comments. I wanted to respond to one common argument: Lower court judges take an oath to defend and are bound by the Constitution, not the Supreme Court’s erroneous version of the Constitution. As a result, the argument runs, they should put aside Supreme Court precedents and follow the true Constitution instead. Put another way, lower-court judges should interpret the Constitution as best they see it, not as best the Supreme Court sees it.

Let’s assume this argument is correct, and let’s see how it would play out in practice. In particular, let’s say you’re a new federal district court judge. You’ve just been confirmed by the Senate, and on your first day there are three cases on your docket: 1) a constitutional challenge to a state law flatly banning the possession of guns, exactly like the law struck down in McDonald; 2) a constitutional challenge to a federal law banning the possession of guns in school zones, exactly like the law struck down in Lopez; and 3) a constitutional challenge to a campaign finance law that is extremely similar to the one struck down in Citizens United.

How should you decide these cases as a new Federal District Court Judge? If you believe that lower court judges are bound by precedent, then your decisions are easy. You have to strike down the gun law under McDonald and Heller; you have to strike down the second law under Lopez; and you have to strike down the third law under Citizens United. Whether you happen to agree with these 5-4 Supreme Court decisions is irrelevant, as you are bound by them and have to apply them. All three laws must be struck down.

But now imagine that you think each judge has to interpret the Constitution independently: Each judge must follow what he or she personally believes is the true Constitution, not what the nine Justices of the Supreme Court have said. So you read all the relevant precedents — McDonald, Heller, Lopez, and Citizens United — to see which arguments you think are most persuasive. Upon reading them, you find yourself persuaded by the dissents in each of these cases. You don’t think the majority arguments are persuasive, for a range of reasons. You think each of the the 5-Justice majority opinions simply got it wrong, and the 4-Justice dissents got it right.

In that situation, you would have to uphold all three statutes: You would have to uphold the gun ban, despite McDonald and Heller; uphold the federal ban on gun possession in a school zone, despite Lopez; and uphold the campaign finance law, despite Citizens United. You would have to do this because you’re following the true Constitution — at least, the true Constitution as you see it, which is the best any one person can do — rather than following what you see as the mistakes of the past Supreme Court. And you’d have to do this in every case, as would every judge, state and federal. Every new case and every appeal would hinge on what the judges thought in that case, with no issue ever being settled: Whether the Second Amendment is an individual right and applies to the states, for example, would be up to every new judge in every new case.

I think that situation would be really bad, as no constitutional right could ever be stable. Indeed, no rights of any kind could be stable. Your rights would only be what the judge you happened to draw thought was the correct answer at the particular time you happened to ask him. Sounds like chaos to me.

“But wait,” some readers will object, “My argument is that judges should follow the true Constitution, and I think McDonald, Heller, Lopez, and Citizens United are all correct. Because they are correct, judges should follow them.” The problem with this argument is that people disagree on what cases are correctly decided. You think one way; others think another way; there is disagreement. The question is how to settle these disagreements when visions of the true Constitution differ. The idea of a Supreme Court is that we need to settle these issues for all practical purposes somehow, and getting a large-ish group of some of the smartest judges together and having them vote is a relatively good way to do that. It’s not perfect, of course. But given the profound disagreement on what the true Constitution means, it’s a ton better than letting every judge decide every case from scratch.