The Volokh Conspiracy

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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.


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.