Yesterday was the beginning of the Federalist Society’s National Lawyers Convention; San Diego-based Judge Patrick Bumatay gave opening remarks. At Volokh Conspiracy, Josh Blackman has excerpts and comments: Judge Bumatay on Originalism, Stare Decisis, and the Party Presentation Rule. From the beginning:
First, Judge Bumatay opined on the topic of horizontal stare decisis:
Second, bloodthirsty originalists must not hesitate to overturn non-originalist lower-court precedent.
Judges don’t work with a blank slate. We often encounter non-originalist, bad decisions. And trust me–as a Ninth Circuit Judge, I face this problem more than most.
To be clear, I’m not talking about vertical stare decisis. No serious originalist judge would question our duty to follow the Supreme Court. As Justice Gorsuch recently said, “Lower court judges may sometimes disagree with th[e Supreme] Court’s decisions, but they are never free to defy them.”
What I am talking about is horizontal stare decisis. By that, I mean: when should circuit judges overturn their own non-originalist precedents? Spoiler alert—the answer is “always.”
I’ve written about stare decisis and originalism in the lower courts here.
In his Story Lecture, Judge Oldham said that horizontal stare decisis should not exist at all. Judge Bumatay takes a more restrained approach, and argues that in every case, circuit precedents that are inconsistent with original meaning should be overruled. Of course, on the Ninth Circuit, Bumatay lacks the votes to take these actions. But an originalist judge should do everything in his power to pursue that worthwhile cause. Invariably, that will mean writing dissents from denial of rehearing en banc.
And on the party presentation principle:
Third, Judge Bumatay would not be limited by the so-called party presentation principle:
Judges are never obligated to follow the parties’ agreement to incorrect law. After all, the parties don’t need to ensure the best interpretation of the law. Judges do. So even though judges generally rely on the arguments the parties advance, we should never cede our duty to independently interpret the law.
In my view, once a party raises a legal theory, judges may consider anything subsumed by that theory. So we can’t completely refashion the parties’ claims, issues, or legal theories.
But within a particular theory, judges may consider any arguments, sources, or authorities that may be helpful—including those not raised in the briefing. So even if the parties don’t specifically make originalist arguments in a constitutional case, judges are free to—and indeed must—engage with the historical understanding of the constitutional text.
Posted at 6:04 AM