At Volokh Conspiracy, Josh Blackman, Originalism and Textualism in the Lower Courts: Judge Ho's Concurrence in Homeland Insurance Co. From the introduction:
Last week, the Fifth Circuit decided Williams v. Homeland Ins. Co. of New York. The case involved a fairly complicated, and long-running dispute against the insurance company. Here, a divided panel found that the district court lacked diversity jurisdiction.
Judge Ho wrote a concurrence. In this case, he identified "a conflict between text and precedent." In such a clash, Ho wrote, courts "should maximize the former—and minimize the latter." Ho then explained how lower court judges should balance textualism and stare decisis. In short, circuit judges should not support the extension of precedents unless the text supports that extension. This principle applies equally to questions about the original meaning of the Constitution. Other judges should include this string cite when developing lower-court originalism:
"[J]udges swear an oath to uphold the Constitution, consistent of course with a judicial system based on precedent. That should mean that we decide every case faithful to the text and original understanding of the Constitution, to the maximum extent permitted by a faithful reading of binding precedent." Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc). "So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: 'Our duty is to apply the Constitution—not extend precedent.'" Id. at 417 (quoting NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)) (cleaned up). [FN1]
[FN1] See also, e.g., Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J., concurring) (judges should follow legal texts "to the maximum extent that Supreme Court precedent permits") (citing Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)); Preterm-Cleveland v. McCloud, 994 F.3d 512, 543 (6th Cir. 2021) (en banc) (Bush, J., concurring) (same); Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (same); United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019) (en banc) (Jordan, J., dissenting) (when it comes to precedent with a "shaky originalist foundation . . . there is always the option of declining to broaden it—of refusing to extend it one inch beyond its previous contours"); People v. Mathews, 943 N.W.2d 636, 645 (Mich. 2020) (Viviano, J., dissenting) (judges should not extend precedent "unless the extension is required by the Constitution's original meaning"); see generally Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & LIBERTY 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.").
RELATED: My recent post Judge Bumatay on Originalism and the Second Amendment (discussing Judge Bumatay's originalist dissent from the Ninth Circuit's en banc ruling in Duncan v. Bonta).
Posted at 6:35 AM