Legal scholarship highlight: When lower courts don’t follow Supreme Court precedent

Richard M. Re 

Last week, the Supreme Court issued a summary reversal to enforce its own clear and on-point precedent. In doing so, the court reminded the lower courts of how authoritative it is. For instance, the court intoned that “it is this Court’s prerogative alone to overrule one of its precedents” and that those precedents “bound” the lower court whose decision was under review. The summary reversal fits a familiar picture of vertical “stare decisis,” in which the court issues formal precedents that lower courts are absolutely obliged to follow – and absolutely may not overrule.

There’s something undeniably right about that point of view. After all, lower courts don’t often declare that they’ve simply rejected or overruled the Supreme Court’s decisions. And many lower-court decisions are replete with claims of faithful adherence to higher-court precedent. When dissenting judges say that lower-court majorities haven’t followed Supreme Court precedent, they’re throwing shade.

But this conventional view of vertical stare decisis is too simple to describe reality and, on reflection, is actually unappealing. I suspect that anyone reading this post can easily think of cases in which lower courts strained to avoid following higher-court decisions. And at least some of those efforts seem defensible. While the Supreme Court may claim decision-making expertise and unique authority, it’s still an imperfect institution. And lower courts are sometimes able to spot when the Supreme Court has written too broadly to account for legal nuances or the possibility of factual change.

To account for the complex role of Supreme Court precedent, we need a concept that lies between overruling and following higher-court rulings. In a recent paper, I tried to address that need by introducing the idea of “narrowing from below,” or construing the scope of a higher-court precedent in a way that is more limited than the best available reading. Narrowing is an interpretive activity. Rather than recognizing that a precedent has a certain scope and then overriding it based on a deeper source of law, as occurs in overruling, narrowing construes the higher-court precedent not to apply in the first place. 

Of course, narrowing from below can still pose a substantial challenge to the Supreme Court’s authority, as well as a risk of disuniformity. So when Supreme Court precedent is relevantly clear, narrowing from below is generally no more legitimate than overruling from below.

But when Supreme Court precedent is relevantly ambiguous, then narrowing is often legitimate, even though it means not adhering to the best available reading of precedent. The high court, after all, isn’t the only source of law relevant to lower courts. When dealing with unclear case law, lower courts are often justified in erring on the side of their own first-principles views of the constitutional or other law at issue. Indeed, the Supreme Court’s decision to issue unclear precedent can be understood as a kind of delegation to lower courts, authorizing them to make adjustments in light of their own distinctive knowledge and opinions. And when the court’s precedent is unclear, affected parties usually know not to rely too strongly on what seems like the best available reading.

Once you know what to look for, narrowing from below is fairly easy to find. Take the court’s Second Amendment jurisprudence. District of Columbia v. Heller, in which the court struck down a law banning handguns, seemed to establish a fairly rigid historical test for Second Amendment claims, prompting Justice John Paul Stevens’s four-justice dissent to “fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.” But very few dominoes ever fell, with the thanks (or blame) going to the lower courts that quickly tamed Heller and curtailed its implications. Recognizing this pattern in a Second Amendment case, Judge Alice Batchelder recently cited my paper on the subject in positing that “[i]t is the lower courts, both we and our sister circuits, that have … engag[ed] in ‘narrowing from below.’”

But narrowing from below has no inherent ideological valence and has recently been used to curb a range of precedents. Perhaps the starkest and most troubling example involves Boumediene v. Bush, in which the court ruled that foreign nationals held at Guantanamo Bay have a right to pursue habeas corpus challenges to their detention. The precedential legacy of Boumediene has largely been left to the U.S. Court of Appeals for the D.C. Circuit. Remarkably, a number of D.C. Circuit judges have expressly criticized Boumediene as wrongheaded while construing it narrowly, prompting Judge David Tatel and others to cry foul. For example, law professor Janet Cooper Alexander has made a forceful case that the D.C. Circuit has “effectively overruled” Boumediene.

The concept of narrowing from below allows us to describe what has happened more precisely. The D.C. Circuit hasn’t asserted a power to overrule from below, nor has it contravened the clear meaning of Boumediene. Instead, the appellate court has construed Boumediene’s ambiguities in favor of its inapplicability. Whether the D.C. Circuit’s actions are impermissible depends in part on one’s theory of vertical stare decisis. If lower courts should predict the Supreme Court’s desires, then perhaps the D.C. Circuit has acted legitimately. After all, the Supreme Court hasn’t seen fit to intervene. But if lower courts have a duty to treat the Supreme Court’s case law as authoritative even when incorrect, then the D.C. Circuit would be acting illegitimately by narrowing higher-court precedent based on disagreement with it.

The Heller and Boumediene examples might create the impression that narrowing from below necessarily diminishes the Supreme Court’s power. But the reality is more complicated. True, narrowing from below enables lower courts to act on their own views of the law and to influence the high court’s agenda (such as by creating or avoiding circuit splits). But the Supreme Court itself has a great deal to say about when narrowing from below takes place. By asserting clear rules, the Supreme Court can preclude legitimate narrowing from below – and make any kind of narrowing from below harder to do. And, of course, the Supreme Court stands ready to add new clarity or correct outliers, including through summary reversals like the one it issued last week.

Moreover, the high court might actually benefit from narrowing from below even when the justices don’t consciously invite it. In many cases, I’ve argued, narrowing from below “helpfully informs the Court of the consequences of updating the law in one direction or another.” The court often has a great deal to learn from the way that lower courts choose to narrow. And a more informed Supreme Court may be better equipped to set wise national precedent. So, in many situations, narrowing from below actually enhances the Supreme Court’s effectiveness.

Recent Fourth Amendment case law supplies a good example. In a Fourth Amendment case from 1973, the court set a fairly categorical rule allowing for searches of persons incident to their lawful arrest. That rule may have been defensible when issued, but technological changes eventually rendered it defective. Today, most people carry a large part of their lives in their smartphones, making personal searches highly intrusive. In response to that development, a number of lower courts construed the 1973 decision narrowly, so that it didn’t apply to smartphones. These decisions were highly controversial, and there was a strong argument that they contravened the best reading of an avowedly categorical precedent. But when the Supreme Court ruled on the issue in 2014 in Riley v. California, it criticized decisions that had “mechanical[ly]” adhered to the 1973 case and praised lower courts that had stretched the case law to update it.

What’s more, the high court invites narrowing not just through conventional precedents but also through “signals,” or official but informal guidance on how lower courts should decide cases. Thanks to new communications technologies and the legal culture of court-watching, the justices can now provide many informal cues outside of full-dress decisions on the merits, such as by denying or granting stays or making their views clear at oral argument. Signals could be viewed as occupying a new precedential tier below full merits decisions. That is, signals might properly be used to resolve cases of first impression or to construe ambiguities in conventional precedent, but not to trump clear majority rulings.

One important way of using signals is to green-light narrowing from below. Imagine that the Supreme Court lacks the opportunity – or the confidence – to scale back one of its merits decisions but nonetheless hopes to suggest how lower courts should proceed. In those circumstances, the court could profitably signal that narrowing from below is permissible, so as to allow for lower-court experimentation. Or, going further, the court might signal precisely how lower courts should deal with a precedential ambiguity. The ability to issue these signals could have supervisory benefits – but they must be viewed cautiously. 

Because signals are informal, they are easily misinterpreted, so lower courts should generally follow them only when they have been issued deliberately by a majority of the justices.

Remarkably, some courts have expressly debated whether to follow the Supreme Court’s signals. For instance, in DeBoer v. Snyder, the U. S. Court of Appeals for the 6th Circuit entertained – but ultimately rejected – the possibility that the Supreme Court’s then-recent denials of petitions for review in same-sex marriage cases might “signal that, from the Court’s perspective, the right to same-sex marriage is inevitable.” Clearly, denials of review aren’t conventional precedent. But those particular denials sent a strong signal that lower courts should no longer feel bound by Baker v. Nelson, a 1972 summary decision in which the Supreme Court had ruled against same-sex marriage rights.

More recently, the 8th Circuit discerned “a signal” in the Supreme Court’s remarkable stay orders related to contraception coverage under the Affordable Care Act. Other courts had also discussed those signals, with varying results. So when the high court finally addressed the issue in Zubik v. Burwell, Justice Sonia Sotomayor wrote separately (joined by Justice Ruth Bader Ginsburg) in part to assert that “[l]ower courts … should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.” The fact that two justices felt that they had to issue this caution – and that they did so without the endorsement of a majority – demonstrates that signals are playing an important role in the judicial system.

In short, the precedential universe is now too complex to rely only on the familiar concepts of following and overruling, or to limit one’s view to conventional precedent. Narrowing from below and Supreme Court signals have become an important part of the story.

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