- Issue 3 – April 2018, Volume 45

How the Prohibition on “Under-Ruling” Distorts the Judicial Function (and What To Do About It)

Article by: A. Christopher Bryant and Kimberly Breedon

45 PEPP. L. REV. 505 (2018)

Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases to be decided similarly. The Agostini Rule enables the Court to avoid following its own precedents, without explanation. Thus, the Court possesses significant latitude when making policy decisions, only increasing the importance of a Justice’s life tenure. The failed nomination of Merrick Garland to the Supreme Court magnified the ramifications of the “under-ruling” prohibition, as political mobilization against Garland revealed the belief that replacing Justice Antonin Scalia with a Democratic President’s nominee would have enormous consequences. This article proposes a legislative remedy to “under-ruling” by requiring Congress to amend the statutes governing the Supreme Court’s jurisdiction to allow federal circuit courts to certify cases for, and effectively “force,” mandatory Supreme Court review. Consequently, the Supreme Court would no longer be able to evade its older precedents. This more consistent and transparent Court would both revive faith in the rule-of-law and improve the confirmation process, preventing any potential confirmation gridlock.

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