Article

Following Lower-Court Precedent

Aaron-Andrew P. Bruhl

Associate Professor, University of Houston Law Center.

For helpful comments, I thank Andrew Coan, Jim Hawkins, Toby Heytens, Randy Kozel, David Kwok, Anita Krishnakumar, Ethan Leib, Hillel Levin, Teddy Rave, Michael Solimine, audiences at South Texas College of Law and the University of Houston Law Center, and the editors of this journal. I thank David Klein and Stefanie Lindquist for sharing data that I used to perform some calculations in Part III.A. I thank Andrew Campbell and Kirsty Davis for research assistance.

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential reasons to give weight to lower-court precedent, including reasons related to stability, constraint, and the wisdom of crowds. To address the descriptive question, this Article examines the current justices’ voting behavior and reasoning, over a period of several recent years, in cases in which the Court resolved splits in the lower courts. The Article’s conclusions shed light on broader debates over interpretive methodology and the Supreme Court’s role as the manager of a large judicial system.

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