Rebellious Judges

Don’t be fooled by their dark robes and serious demeanors: some judges are rebels. Their acts of insubordination may be quiet ones, but they still shake the foundations of the judicial hierarchy.

If strict obedience to the Supreme Court’s rulings is the best measure of judicial docility, then there is reason to view the U.S. Court of Appeals for the Ninth Circuit as the country’s most rebellious appellate tribunal. In case after case, the Ninth Circuit is reversed by the Supreme Court, often by a unanimous vote.

But even by Ninth Circuit standards, an unpublished decision issued a few weeks ago is worthy of note. In a case involving California’s harsh “three strikes” sentencing law, under which defendants face mandatory life imprisonment, two judges expressed passionate disagreement with the applicable Supreme Court precedents.

One of the two, Judge Stephen Reinhardt, said that were it not for the Supreme Court’s recent decision to uphold the California law, he would have voted to deny the prosecutor’s motion for summary disposition of the case. “I believe the sentence is both unconscionable and unconstitutional,” he explained.

The other, Judge Harry Pregerson, took a more overtly defiant approach. “In good conscience,” he wrote, “I can’t vote to go along with the sentence imposed in this case.”

While neither judge directly dissented from the panel’s decision –Judge Reinhardt concurred and Judge Pregerson said that he was writing separately –their reluctance to follow binding Supreme Court precedent was clear. Their actions were not terribly rebellious, in the end, but their views certainly were.

“The Supreme Court Has Erred”

Some judges have been far less cautious in challenging what is, in their view, wrongly decided Supreme Court precedent. In fact, Judges Pregerson and Reinhardt come off as rather timid compared to an Alabama judge who, in 1983, refused to strike down a school prayer law.

That judge, explaining the ruling, put the matter bluntly. As he proclaimed, with no false modesty, “[t]his Court’s independent review of the relevant historical documents and its reading of the scholarly analysis convinces it that the United States Supreme Court has erred in its reading of history.”

The rebellious judge’s decision was reversed on appeal, highlighting one of the main pitfalls of the defiant approach: it doesn’t get you very far. Any debate between a lower court and its hierarchical superior is inherently unequal. The lower court can appeal to logic, reason, common sense, interpretative canons, and constitutional doctrine, but the higher court’s preferences can still carry the day.

Vertical Stare Decisis

The lower courts’ duty to abide by Supreme Court precedent falls within the doctrine of stare decisis. Given the perceived weakening of stare decisis in recent decades, it is important to distinguish between the doctrine’s two forms: first, the respect a court owes to its own prior decisions, and second, the respect a lower court owes to the decisions of courts above it in the judicial hierarchy.

The first kind of stare decisis, sometimes referred to as “horizontal” stare decisis, has been the more prominent of the two, both in the case law and in academic commentary. There has been much debate over just what degree of deference the doctrine should command, but generally its binding force is understood as akin to a strong presumption, rather than to an inflexible rule of decision.

The duty imposed by “vertical” stare decisis, as the second form of the doctrine is called, is generally acknowledged to be stronger. Few commentators question the lower courts’ obligation to follow the rulings of higher courts; indeed, not even the most vociferous critics of stare decisis in its horizontal form take this position. In contrast to the flexibility usually recognized under the horizontal form of the doctrine, the duty prescribed by vertical stare decisis is frequently referred to as “absolute.”

“Unless We Wish Anarchy to Prevail”

In Hutto v. Davis, a 1982 case, the Supreme Court endorsed a robust view of vertical stare decisis. Warning of the perils of lower court disobedience, the Court conveyed an almost apocalyptic vision of confusion and disarray. As it explained: “unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

Most foreign judges would be amused at these remarks. In civil law jurisdictions –that is, in most European and Latin American countries –there is a very different conception of the judicial function. In theory, the comprehensive legal codes used in such jurisdictions avoid the need for judicial interpretation –or the exercise of judicial discretion –and thus it is unnecessary for one judge’s interpretation to bind future judges.

In many countries, therefore, judges routinely flout the contrary precedents of higher courts. Indeed, the absence of a vertical principle of stare decisis is vividly illustrated by the response of one Italian trial judge who attended a lecture on courts in the United States. Hearing a defense of stare decisis, he exclaimed, with considerable outrage: “My independence as a judge would be completely undermined if I had to follow the decisions of the court of appeals.”

As the Italian judge implies, our system of law would not break down without strict judicial obedience to the rulings of higher courts. Its nature would, however, be changed if the principle of vertical stare decisis were to be accorded less deference.

The civil law understanding of judicial independence elevates the autonomy of individual judges at the expense of the judiciary’s strength as an institution. The principle of stare decisis constrains individual lower court judges but in doing so, it shifts power to the Supreme Court and the judiciary as a body. It turns a mass of uncoordinated decisionmakers into a coherent whole: a branch of government capable of speaking with one voice.

Certainly school desegregation would never have been accomplished, or probably even attempted, without a strong vertical stare decisis principle to keep recalcitrant lower court judges in line.

The Limits to Judicial Obedience

Yet even if one acknowledges that, in general, lower courts should follow the ruling of higher courts, the question remains: does this principle have limits?

If a Supreme Court ruling is clearly, unequivocally wrong –if it is an offense against the Constitution –should the lower courts apply it without demur? If the Court were to hold that black is white, up is down, and the Second Amendment protects an individual right to an AK-47, must lower court judges obediently follow suit?

Without attempting to answer these questions here, I’ll simply note that they hinge on the same interpretative issues, discussed by Professor Akhil Amar and Professor Vik Amar in a series of prior FindLaw columns, that relate to horizontal stare decisis. The fundamental question is to what extent stare decisis, in both its vertical and horizontal forms, is constitutionally mandated, and to what extent a judge’s direct understanding of the Constitution should take precedence.

I’ll also note, finally, that questions of vertical stare decisis are likely to become more prominent as the Supreme Court swings further to the right, assuming that the composition of the lower courts does not change with equal speed. If the Bush administration succeeds in appointing a bevy of extremely right-wing justices to the Court –Scalia junior and Thomas redux –many of us may hope that Judges Reinhardt and Pregerson begin to take a stronger stand.

JOANNE MARINER is a human rights attorney and regular CounterPunch contributor. She is the author of No Escape: Male Rape in US Prisons published by Human Rights Watch. An earlier version of this piece appeared in FindLaw’s Writ. She can be reached at:

JOANNE MARINER is a human rights lawyer living in New York and Paris.