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04/17/2021

Lower Court Originalism from Judge John Bush
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, Judge John Bush's concurring opinion in Preterm Cleveland v. McCloud.  From the opinion (citing, among others, Judges Bumatay and Ho, as well as Professor Blackman):

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to "interpret the Constitution in light of its text, structure, and original understanding" takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) ("The Supreme Court's dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court's dictum as dispositive." (emphasis added)). And if it is dubious whether a precedent "is correct as an original matter," we should "tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. 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."). In such a case, "the rule of law may dictate confining the precedent, rather than extending it further." NLRB v. Int'l Ass'n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) ("[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.").

This view seems to be taking hold broadly among newer court of appeals judges, with Judge Bumatay as one of the leaders.

(Somewhat related thoughts here from me, from a while back, on how to manage the relationship between originalism and precedent).