Vasan Kesavan (independent) has posted Vertical Stare Decisis (78 Florida Law Review, forthcoming) (20 pages) on SSRN. Here is the abstract:
The subject of stare decisis has occupied considerable scholarly attention over the years, so much so that one could fill a small log cabin with its pages. Yet one massively understudied aspect of stare decisis is its "vertical" application in a judicial hierarchy. Nearly everyone assumes or believes that the Constitution requires inferior federal courts to obey Supreme Court precedents no matter what. This is what a constitutional rule of "vertical stare decisis" entails. The Supreme Court certainly thinks so. But is that right?
This Article challenges the conventional view and upends it. Based on a careful review of the Constitution's text, structure, and history, it concludes that the Constitution does not prescribe a rule of vertical stare decisis for inferior federal courts and never has. Inferior federal courts must therefore avoid blind obedience to Supreme Court precedents; they are not the agents of the Supreme Court, as the President's subordinates are the agents of the President. Inferior federal courts have not merely the power, but the general duty, to disobey Supreme Court precedents that are demonstrably erroneous and conflict with positive law, especially the Constitution which is the nation's supreme, paramount, and fundamental law. That said, Congress retains considerable power to fashion some rules of vertical stare decisis for statutory cases.
Sounds a bit counterintuitive, but not to be dismissed lightly: Vasan Kesavan is a serious originalist scholar, including as co-author (with Michael Paulsen) of one of the most important methodological originalist articles of all time, The Interpretive Force of the Constitution's Secret Drafting History.
Posted at 6:04 AM