Originalism in the Lower Courts

Judge Bumatay on Originalism in the Lower Courts: "It is our duty to apply the Constitution—not extend precedent"

He follows Justice Thomas's dissent from Garza v. Idaho: "Where precedent is seriously questioned 'as an original matter' or under current Supreme Court doctrine, courts 'should tread carefully before extending' it."

|The Volokh Conspiracy |


Today, Judge Patrick Bumatay dissented from the denial of rehearing en banc in NLRB v. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers. I would commend everyone to read his careful analysis about how lower courts should approach originalism and stare decisis. I may be partial to his approach, as he cites my article on this issue.

I agree with Judge Berzon that this case should have been taken up en banc. I write separately to emphasize my views on why the Supreme Court's decision in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694 (1951) ("IBEW"), is not binding in this case and why it is our duty to apply the Constitution—not extend precedent—here.

As inferior court judges, we are bound to follow Supreme Court precedent. Hart v. Massanari, 266 F.3d 1155, 1170–71 (9th Cir. 2001). After all, "[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). But our fidelity is not blind. We always have a "duty to interpret the Constitution in light of its text, structure, and original understanding." NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). The same could be said of precedent that has been eroded by more recent jurisprudence.

This doesn't mean that lower court judges can refuse to follow precedent—even if subsequent caselaw or the original meaning cast it into doubt. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower court judges don't have license to adopt "a cramped reading" of a case in order to "functionally overrule" it. Thompson v. Marietta Educ. Ass'n, No. 19-4217, 2020 WL 5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we permitted to create "razor-thin distinctions" to evade precedent's grasp. Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019).

But, where precedent is seriously questioned "as an original matter" or under current Supreme Court doctrine, courts "should tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). We can take care not to unduly expand precedents by reading them "in light of and in the direction of the constitutional text and constitutional history." Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). So too with intervening Supreme Court decisions. And if a faithful reading of precedent shows it is not directly controlling, the rule of law may dictate confining the precedent, rather than extending it further. Cf. Citizens United, 558 U.S. at 378 ("[S]tare decisis is not an end in itself. . . . Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.").

In this case, he finds there is not a "razor-thin" distinction with precedent. Therefore, it should not be extended:

Given this backdrop, nothing in Supreme Court doctrine or principles of stare decisis require the extension of IBEW here. IBEW deals with picketing and this case does not. As the cases above show, this is not a "razor-thin" distinction. And as Judge Berzon ably demonstrates, IBEW cannot be squared with modern First Amendment law. See Dissent at 16 (Berzon, J., dissenting) ("Given such a sea change in First Amendment jurisprudence," IBEW "would need to be quite directly on point to be controlling today.").

Indeed, Judge Bumatay argues that the a careful study of the original meaning further justifies not extending this precedent. He favorably cites the work of Jud Campbell.

Also, I have doubts that § 158(b)(4)(i)(B), as applied here, would be consistent with the original meaning of the First Amendment. That Amendment pronounces that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend I. While the contours of this language need further explication, and there is ongoing debate about its meaning among scholars, Justice Scalia articulated the convincing view that the First Amendment generally prevents government from proscribing speech on the basis of content, subject to "traditional categorical exceptions." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382–83 (1992) (identifying obscenity, defamation, and fighting words as examples of such exceptions). Another persuasive view is that the First Amendment cemented the natural right to freely express one's thoughts, spoken or written, subject to restrictions for the common good. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 304–07 (2017). But, under this view, "the Founders widely thought that the freedom to make well-intentioned statements of one's views belonged to a subset of natural rights . . . that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail." Id. at 255–56. As James Madison said, "[o]pinions are not the objects of legislation." 4 Annals of Cong. 934 (1794); see also Thomas Jefferson, A Bill for Establishing Religious Freedom (1779) ("[T]he opinions of men are not the object of civil government, nor under its jurisdiction[.]").

Considering our growing understanding of the First Amendment's original meaning, I question whether Congress can abridge the type of expression at issue here, especially the common catchphrase, "friends don't let friends cross." NLRB, 941 F.3d at 904. Such an expression seems precisely like the type of "well-intentioned statement[] of opinion" that the Founders would have thought inalienable. See Campbell, supra, at 255–56, 284. By denying rehearing en banc, we've passed on a valuable opportunity to examine First Amendment history and further ground our own jurisprudence in the original meaning of the Constitution.

Judge Bumatay is forming his own string cite for other judges to cite. IAB Local and Edmo are exactly right. (I blogged about Edmo here.) He also cites Judge Thapar's decision in Thompson v. Marietta Educ. Ass'n. (Jon Adler blogged about it here.) Judge Bumatay really should have been added to the not-so-short list.

With a contrary perspective, Mike Dorf recently wrote that lower courts should disregard Supreme Court precedent that has been called into doubt.