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Speaking of "sloppy mischaracterizations"

[Alito] wrote sparely [in Farmer]: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." Alito then simply applied the facts of the New Jersey statute to the Supreme Court's holding in Stenberg and noted that the New Jersey statute failed because it was virtually indistinguishable from the Nebraska law that had just fallen. [...] It was a win for stare decisis, yes. But not for choice.

(Dahlia Lithwick, "Three-Quarter Truths", Slate.com, Nov. 14). Stare decisis is, of course, the doctrine whereby judges decide to follow precedent because "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 406 (1932) (Brandeis, J., dissenting)).

But Alito was applying a different principle, the one Lithwick quotes: "follow[ing] and apply[ing] controlling Supreme Court precedent." Stare decisis is discretionary; but following binding precedent is mandatory (hence the term "binding"). See, e.g., Khan v. State Oil Co., 93 F. 3d 1358 (7th Cir. 1996), rev'd, State Oil Co. v. Khan, 522 U.S. 3 (1997). In the lower-court case, Judge Posner followed binding Supreme Court precedent that he felt was wrongly decided; on appeal, the Supreme Court showed that it agreed with Posner by unanimously reversing his decision, because his opinion showed strong justification for the Supreme Court to disregard stare decisis for the 29-year-old "super-precedent" of Albrecht.

It's not clear whether Lithwick believes that lower-court judges have the discretion to disregard binding precedent when they disagree with it strongly enough, or whether Lithwick is committing the same sort of "sloppy mischaracterization" she accuses others of making in the subhead of her piece.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.