The Volokh Conspiracy

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Originalism and Textualism in the Lower Courts: Judge Ho's Concurrence in Homeland Insurance Co.

"When faced with a conflict between text and precedent, we should maximize the former—and minimize the latter."


Last week, the Fifth Circuit decided Williams v. Homeland Ins. Co. of New York. The case involved a fairly complicated, and long-running dispute against the insurance company. Here, a divided panel found that the district court lacked diversity jurisdiction.

Judge Ho wrote a concurrence. In this case, he identified "a conflict between text and precedent." In such a clash, Ho wrote, courts "should maximize the former—and minimize the latter." Ho then explained how lower court judges should balance textualism and stare decisis. In short, circuit judges should not support the extension of precedents unless the text supports that extension. This principle applies equally to questions about the original meaning of the Constitution. Other judges should include this string cite when developing lower-court originalism:

"[J]udges swear an oath to uphold the Constitution, consistent of course with a judicial system based on precedent. That should mean that we decide every case faithful to the text and original understanding of the Constitution, to the maximum extent permitted by a faithful reading of binding precedent." Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc). "So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: 'Our duty is to apply the Constitution—not extend precedent.'" Id. at 417 (quoting NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)) (cleaned up). [FN1]

[FN1] See also, e.g., Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J., concurring) (judges should follow legal texts "to the maximum extent that Supreme Court precedent permits") (citing Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)); Preterm-Cleveland v. McCloud, 994 F.3d 512, 543 (6th Cir. 2021) (en banc) (Bush, J., concurring) (same); Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (same); United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019) (en banc) (Jordan, J., dissenting) (when it comes to precedent with a "shaky originalist foundation . . . there is always the option of declining to broaden it—of refusing to extend it one inch beyond its previous contours"); People v. Mathews, 943 N.W.2d 636, 645 (Mich. 2020) (Viviano, J., dissenting) (judges should not extend precedent "unless the extension is required by the Constitution's original meaning"); see generally Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & LIBERTY 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.").  

I've written about several of these cases, including Taylor-Seidenbach (Ho), Rettig (Ho), Iron Workers (Bumatay), Edmo (Bumatay), and Preterm-Cleveland (Bush). Also, I appreciate the citation of my article, Originalism and Stare Decisis in the Lower Courts.

Let me make a broader observation: the judges in this string cite should populate any future list of Supreme Court nominees. If we are committed to placing originalists on the bench, we should place committed originalists on the bench.

In this case, the circuit's precedents were inconsistent with the text of the statute. Bound by circuit precedent, Judge Ho explained that judges should simply limit those non-textualist opinions, and decline to extend them further.

As a panel, we are of course bound to follow our circuit precedent. And that requires reading precedent faithfully. "Lower court judges don't have license to adopt a cramped reading of a case in order to functionally overrule it." Int'l Ass'n, 974 F.3d at 1116 (Bumatay, J., dissenting from denialof rehearing en banc) (quotations omitted). See also Blackman, 13 NYU J.L. & LIBERTY at 51 ("Of course, judges can always draw razor-thin distinctions and contend that a particular issue is not governed by a non-originalist precedent. But judges should resist this temptation.").

Here, there is no reason to extend the precedent further:

But our precedent has applied the improper joinder doctrine only in cases where a defendant was improperly joined as a matter of substantive law. See Flagg, 819 F.3d at 136 ("the test for improper joinder 'is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant'") (quoting Smallwood, 385 F.3d at 573). None of our precedents involved a defendant who was improperly joined as a matter of procedure, as is the case here.

I see no reason why we should be compelled to extend our erroneous precedents to fit this case. This is not a case, after all, in which logic demands that we extend an atextual body of precedent in order to preserve rationality or consistency in the law. Cf. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (courts must interpret statutes "consistently"); Clark v. Martinez, 543 U.S. 371, 380 (2005) (same).

On these narrow grounds, Judge Ho concurs:

We should decide every case by adhering to the governing legal text to the maximum extent permitted by a faithful reading of binding precedent. That is what the majority does today. I accordingly concur.

Judge Jones dissented:

The majority holds that the district court lacked jurisdiction because a non-diverse defendant remained from the original lawsuit. According to the majority, the sky will fall on removal jurisdiction unless this case against Homeland proceeds only in Louisiana state court. The majority's arguments, in my view, prove too much. I would affirm the district court's jurisdiction. 

Of course, the Fifth Circuit could take this issue en banc to correct a flawed precedent. Judge Ho's concurrence makes that outcome more likely. And ultimately, these originalist/textualist concurrences flag for the Supreme Court where precedent has deviated from text. I am increasingly grateful for the trickle-up effect from lower-court originalists.