Rule of Law

How Do Jurists Decide When Originalism, Precedent Diverge? Appellate Judges Give Their Thoughts

“This is one of these eternal debates that I have—I’m sure many judges have—with law clerks,” said Judges James Ho of the U.S. Court of Appeals for the Fifth Circuit.

Federal appellate judges Thursday discussed ways to approach cases in which U.S. Supreme Court precedent seems to conflict with originalist legal arguments, including by having profound talks with their law clerks about the constitutional duty of jurists.

“This is one of these eternal debates that I have—I’m sure many judges have—with law clerks,” said Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit.

“The argument will be ‘Judge you didn’t swear an oath to uphold Supreme Court precedent, you swore an oath to uphold the Constitution,” Ho said at the Federalist Society’s 2023 National Lawyers Convention in Washington. “So does that suggest that you get to do whatever you want in terms of interpreting the Constitution?’… It’s a view that’s held by, to my knowledge, not a single member of the federal judiciary.”

Ho said, in his view, judges must be faithful to the original understanding of the Constitution “to the maximum extent permitted by a faithful reading of Supreme Court precedent,” adding that the process isn’t clear cut.

“You have to figure out, what is the precedent, what is the rule that is being imposed on us by that Supreme Court decision, and we try to be faithful to it, but we don’t have to extend this to situations that go outside of it,” Ho said.

Eleventh Circuit Judge Britt Grant said precedent in some instances plays an “administrative role” in that it provides consistency and prevents confusion among lawyers.

She noted that when the Eleventh Circuit was created in 1981 through a split from the Fifth Circuit, the newly created appeals court decided to consider Fifth Circuit rulings before the split as binding precedent.

“The fact that a panel of this court may come out differently on one issue one time was not worth all of the upset to people’s understanding, lawyers’ understanding, litigants understanding of how they needed to put their behavior forward,” Grant said.

“And then on the more publicly divisive issues, I think it’s really interesting to see how we can apply some of those same tools in a thoughtful way and make sure that we’re fulfilling our duty to the Constitution and as intermediate appellate court judges, as opposed to the ultimate deciders on the Supreme Court,” she added.

Both Ho and Grant were appointed to the bench by former President Donald Trump.

Attorneys on the discussion panel said litigating cases where originalist ideas are at odds with precedent is not always futile in the lower courts.

Former U.S. Solicitor General Paul Clement, a partner at Clement & Murphy, said in those instances lawyers may still make originalist arguments in hopes that a judge will write a concurrence signaling to the Supreme Court to reconsider precedent.

“[The justices] turn down a lot of cert petitions in my experience, so having something like a concurring opinion to point to can be really helpful,” said Clement, who represented petitioners in the 2022 Bruen case in which Supreme Court held modern day gun laws must be consistent with the country’s “historical tradition of firearm regulation.”

And in cases where parties devoted only a small part of their briefs to originalist arguments, judges could invite amici participation to help flesh out those ideas, Clement said.

Elizabeth Wydra, president of the Constitutional Accountability Center, said judges would benefit from more amici participation, but restricted resources make it difficult for groups such as hers to do so. The CAC is a legal nonprofit that advances a progressive interpretation of the Constitution.

“Good originalism takes time, and it takes expertise,” Wydra said.

“Being able to write briefs that have that rigorous, credible originalist analysis, it takes a lot of work,” she added. “And so it’s one thing when it’s in the Supreme Court, but it’s another trying to cover all the ground of the courts of appeals. And I think that’s a real challenge for judges because then you are trying to do it yourself.”

Ho agreed that more amicus briefs delving into originalist theories of the Constitution would help judges, who have many cases on their dockets and limited time to conduct individual, historical research.

But Ho added he’s wary of turning to amici too regularly.

“I get nervous about doing that too much,” he said. “I certainly would be wary about playing favorites.”