Over at Dorf on Law, Mike Dorf has a post defending his old boss Judge Reinhardt. Dorf’s basic argument is that Reinhart’s high reversal rate is because he “resolves cases under existing precedent as he believes those precedents should be read, without regard to whether five or more Justices of the Supreme Court are likely to reverse him,” and favorably contrasts this approach to a “predictive” approach where a lower court judge would rule only based on how five Justices are likely to rule and not what existing precedent says. I find this defense of Judge Reinhardt’s jurisprudence less than persuasive.
The key case that Dorf relies on is Rodriguez de Quijas v. Shearson/American Express, where the court held that if a not-yet-overruled Supreme Court case has direct application to a case, the lower court should follow the old case even if it believes that the Supreme Court would overrule the prior case. But if we theorize that preexisting precedent compels a particular outcome, and Judge Reinhart is unanimously reversed in a summary decision, that requires one of three propositions to be true: (1) Judge Reinhardt was seriously mistaken about the precedent-compelled right answer, (2) all nine Supreme Court justices are seriously mistaken about the precedent-compelled right answer, or (3) the Supreme Court is sub silento and without dissent overruling a prior precedent without anybody noticing. All three are rather implausible, which suggests the compelled-by-precedent theory is incorrect.
Rather than describing Judge Reinhardt’s rulings as directly following preexisting precedent, it is much more accurate to say that preexisting case law often leaves sufficient wiggle room for later judges to disagree. Adopting this legal realist understanding means that a lower court judge is rarely facing the dichotomous choice between “following direct precedent” and “following his prediction of 5 votes” that Dorf constructs. Rather, most of the time, the choice is between following a judge’s personally preferred reading of precedent, where there are multiple legally permissible readings and the choice is based on non-legal considerations such as political sympathies, or the judge’s prediction of the Supreme Court’s reading of precedent. It requires stretching Rodriguez quite a bit to say that it legitimates this type of decision-making by lower court judges.
Posted by Tun-Jen Chiang on December 2, 2010 at 05:00 PM