Originalism in the Lower Courts

Originalism on the Lower Courts: En Banc Proceedings Can "better align our precedents with the text and original understanding of the Constitution"

From Judge Ho on the Fifth Circuit.

|The Volokh Conspiracy |

Yesterday, the en banc Fifth Circuit decided Williams v. Seidenbach, Inc. The case concerned appeals from final judgments under Rule 54(b). Judge Ho wrote the majority opinion, and also wrote his own concurrence. He offered a practical application of what I've called originalism in the lower courts.

To begin, the dissent makes three valid points. First, the dissent is correct that one 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).FN2

Judge Ho favorably cites Judge Bumatay's dissent in Edmo. (I discussed that case here.)

FN2: 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)).

I will try to flag lower-court decisions that employ originalism. Please send me any that I may miss.

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  1. I’m as conservative as the next guy (well, unless the next guy is Jimmy the Dane; but I’m definitely conservative enough to be a clinger in the eyes of the Very Reverend Arthur Kirkland). But, I also value humility, and professionalism. Both of which, from everything I’ve read so far, Judge Ho sorely lacks.

    IMO, he’s the Stacey Abrams of federal appellate judges. (Or a certain professor, if you’d prefer.) The constant self-promotion. He’s nakedly auditioning for a Trump SCOTUS nod, but like Governor Abrams he’s trying too hard and has revealed himself to lack the professionalism, humility, and (more surprising) the intellect for the position he’s in, much less one of the nine. When I read many of his opinions, I’d expect them to come from an elected state court judge in a small, fairly conservative county, not a federal appellate judge.

    There are judges like Kethledge and Sutton in the Sixth Circuit, for example, who are as conservative as Ho, but I’m sure they are much more respected by their peers and the Bar in general. They have a seriousness, intellect, and professionalism that I’m not seeing in Ho. Am I the only conservative who feels this way? (I’ve seen such critiques from liberals, but I have to imagine that at least some of my fellow conservatives are unimpressed with Judge Ho for similar reasons, right?)

    1. “much more respected by their peers and the Bar in general”

      Who cares if “lawyers” respect him. He doesn’t work for them but the people.

      “to the maximum extent that Supreme Court precedent permits. ”

      About time conservatives start doing this. We know libs take this position. 60 years of terrible decisions need to be narrowed at least if they cannot be assaulted directly.

      1. Who cares if “lawyers” respect him. He doesn’t work for them but the people.

        He may work for the people, but lawyers are experts and the people are not.

        A microbiologist at a public university works for the public too; I’d still care what her peers and students and deans think of her.

        1. Surely it’s more important what Laura Ingraham or Bill Mitchell thinks of such a person.

      2. “About time conservatives start doing this. We know libs take this position. 60 years of terrible decisions need to be narrowed at least if they cannot be assaulted directly.”

        Then let the Supreme Court do that, not some rogue Appellate Court or District Court Judge.

      3. I mean if the people who you work with and in your field don’t respect you, then you’re probably not doing a very good job on behalf of the people.

        1. That might be true, if we weren’t talking about people who work for the government.

    2. Governor Abrams?

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