At Volokh Conspiracy, Josh Blackman flags the recent opinion by Judge James Ho (Fifth Circuit) in Williams v. Seidenbach, Inc., which had this observation:
[O]ne important purpose of en banc rehearing is to reconsider our circuit precedent—for example, "to better align our precedents with the text and original understanding of the Constitution or the plain language of United States statutes" to the maximum extent that Supreme Court precedent permits. Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)
Judge Ho added a footnote to (San Diego-based) Judge Patrick Bumatay:
See also Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from the denial of rehearing en banc) ("As inferior court judges, we are bound by Supreme Court precedent[s]. . . . [But] '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'") (fourth alteration in the original) (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)), aff'd in part, rev'd in part, 561 U.S. 477 (2010)).
Professor Blackman adds: "I will try to flag lower-court decisions that employ originalism. Please send me any that I may miss."
And here is his article Originalism and Stare Decisis in the Lower Courts (13 NYU Journal of Law & Liberty 44 (2020)).
Posted at 6:23 AM