Judge Bumatay on Originalism, Stare Decisis, and the Party Presentation Rule

This morning, Judge Patrick Bumatay of the Ninth Circuit gave the opening remarks at the Federalist Society Convention.

First, Judge Bumatay opined on the topic of horizontal stare decisis:

Second, bloodthirsty originalists must not hesitate to overturn non-originalist lower-court precedent.

Judges don’t work with a blank slate. We often encounter non-originalist, bad decisions. And trust me–as a Ninth Circuit Judge, I face this problem more than most.

To be clear, I’m not talking about vertical stare decisis. No serious originalist judge would question our duty to follow the Supreme Court. As Justice Gorsuch recently said, “Lower court judges may sometimes disagree with th[e Supreme] Court’s decisions, but they are never free to defy them.”
What I am talking about is horizontal stare decisis. By that, I mean: when should circuit judges overturn their own non-originalist precedents? Spoiler alert—the answer is “always.”

I’ve written about stare decisis and originalism in the lower courts here.

In his Story Lecture, Judge Oldham said that horizontal stare decisis should not exist at all. Judge Bumatay takes a more restrained approach, and argues that in every case, circuit precedents that are inconsistent with original meaning should be overruled. Of course, on the Ninth Circuit, Bumatay lacks the votes to take these actions. But an originalist judge should do everything in his power to pursue that worthwhile cause. Invariably, that will mean writing dissents from denial of rehearing en banc.

In the Ninth Circuit, we have a rule that we must sit en banc to overturn precedent. So this might mean we must call more cases en banc. I understand that seeking en banc review may have ramifications for collegiality on the court.
I know the sting of having a decision that I’ve written be later vacated en banc. And collegiality is important.
But collegiality isn’t the end all and be all. To me, collegiality is more about how we treat each other, when we are off the bench. Outside of our writings. In those situations, we must always treat each other respectfully.

I agree with Bumatay that collegiality does not mean declining to vote for en banc. I made a related point last year:

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge’s role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening.

Second, Judge Bumatay discusses the gravitational pull of originalism:

In applying precedent, we must “bend” it in the direction of the original public meaning. That doesn’t mean that we can take a “cramped reading” of precedent to “functionally overrule” it. But neither should we take an overly broad view of the precedent—allowing it to expand its reach. Instead, if we can find good-faith distinctions, then we should do so and return closer to first principles.
As I said, our duty is to apply the Constitution—not to extend precedent.
Justice Kavanaugh had it right when he explained that text, history, and tradition must function as the “gravitational pull” on our interpretation of precedent. So we can respect precedent even while pulling it in the direction of the Constitution’s original meaning. So we don’t need to wait for cases with a complete blank slate or questions of first impression for the Constitution’s text and history to come into play.

I first developed this theme of originalism’s gravitational pull back in November 2012, shortly after that year’s FedSoc convention:

So, in this sense, originalism’s gravitational pull tugs the Constitution towards original meaning, even if originalism is not advanced in a case that circles the orbit of New Federalism. Originalism is the hidden force that causes other things to shift, even if we don’t directly see why. This is why “this far and no further” works, even when originalist arguments need not be made. Thus, scholars need to continue developing originalism so that the force, the pull, the tug remains to keep our Constitution shining bright and strong.

I thank Randy Barnett for offering this weighty idea as a way to explain the importance of originalism in our modern legal landscape. (See also Dworkin’s related thoughts on “gravitational force.”).

Third, Judge Bumatay would not be limited by the so-called party presentation principle:

Judges are never obligated to follow the parties’ agreement to incorrect law. After all, the parties don’t need to ensure the best interpretation of the law. Judges do. So even though judges generally rely on the arguments the parties advance, we should never cede our duty to independently interpret the law.
In my view, once a party raises a legal theory, judges may consider anything subsumed by that theory. So we can’t completely refashion the parties’ claims, issues, or legal theories.

But within a particular theory, judges may consider any arguments, sources, or authorities that may be helpful—including those not raised in the briefing. So even if the parties don’t specifically make originalist arguments in a constitutional case, judges are free to—and indeed must—engage with the historical understanding of the constitutional text.

I am not a huge fan of the party presentation principle. Indeed, Judge Oldham made a related point. He said it was wrong to follow a circuit precedent when no originalist arguments were even presented.

Judge Bumatay offered a challenge to the judges in the room:

To the judges in the audience, I’m here to say that we can do originalism—not once or twice in a career—but once or twice in a day.

I immediately thought of Chief Judge Pryor’s lecture at the University of Florida last year. He offered this observation.

My view comes from my experience. In two decades of judicial service, I have had to determine, as a writing judge, the original meaning of a constitutional provision in so few appeals that I can count them on one hand, and I would still have a digit left to count another.

There is a lot here to consider, and there is a brewing debate about lower-court originalism.

What a great way to kick off the convention.