# May an appellate judge choose not to follow an unconscionable SCOTUS precedent? **URL:** \ **Category:** Great Debates\ **Created:** [June 1, 2003, 7:53pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982 "2003-06-01T19:53:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 1, 2003, 7:53pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/1 "2003-06-01T19:53:46Z")
Ninth Circuit Judge Harry Pregerson [followed his conscience](http://www.latimes.com/news/opinion/commentary/la-oe-bashman1jun01,1,5111043.story?coll=la%2Dnews%2Dcomment%2Dopinions) in a case involving California’s three-strikes law. > [@](#): > > In March 2003, the U.S. Supreme Court ruled that California’s three-strikes law, which requires a sentence of 25 years to life for certain repeat criminal offenders, did not violate the 8th Amendment’s prohibition against cruel and unusual punishment. A companion ruling issued the same day prohibited federal courts, on habeas corpus review, from setting aside as unconstitutionally excessive three-strikes sentences that California’s state court system had imposed. > > On May 19, 2003, a three-judge panel of the U.S. 9th Circuit Court of Appeals began disposing of a backlog of three-strikes appeals from federal trial courts in California… > > The 9th Circuit panel assigned to rule on the backlog of cases consisted of judges Harry Pregerson, Stephen Reinhardt and Susan P. Graber. The 9th Circuit in each case properly rejected the prisoner’s challenge to the three-strikes sentence. > > But neither Pregerson nor Reinhardt was pleased. In each instance, Reinhardt issued a concurring opinion stating, “I concur only under compulsion of the Supreme Court decision I believe the sentence is both unconscionable and unconstitutional.” > > Pregerson, taking his displeasure one step further, refused to join in the rulings, writing instead: “In good conscience, I can’t vote to go along with the sentence imposed in this case.” Columnist/lawyer Howard Bashman argues that a judge may no more flout a higher judge’s order than can you or I ignore a judge’s order. He says the entire judicial system breaks down if individual judges are free to simply follow their conscience. Do you agree? ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [June 1, 2003, 8:03pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/2 "2003-06-01T20:03:25Z")
I agree. The real question is whether Pregerson would have ruled the way he did had his decision affected any real outcomes. I don’t know, personally, if I could have upheld cases that supported slavery, Japanese internment, and so on, though I think my recourse would be to quit as a judge rather than buck the law. While I don’t think judges should rule out of conscience, I don’t think they should do so out of politics either, and the SC is hardly an exemplar of legal propriety when it comes to that. The whole system needs a kick in the pants. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 1, 2003, 8:41pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/3 "2003-06-01T20:41:04Z")
**December** , it is quite possible we may be on the same “side” in this debate. IIRC, the oath taken by Federal judges calls for them to administer justice fairly in accordance with “the law of the land” – with the understanding that the Constitution is the supreme law of the land. Adjudications regarding the interpretation of the Constitution from SCOTUS would, presumably, constitute a part of the “law of the land” – but their primary responsibility is to the constitution. If a three-strikes sentence constituted an excessive penalty under the Eighth Amendment in the eyes of a Federal judge, he’s honorbound to apply, not the views of SCOTUS on whether or not sentences under three-strikes laws are unconstitutional, but the Constitution itself. SCOTUS can, of course, overrule him. > [@](#): > > A companion ruling issued the same day prohibited federal courts, on habeas corpus review, from setting aside as unconstitutionally excessive three-strikes sentences that California’s state court system had imposed. From my reading of SCOTUS decisions, I suspect this is a reporter’s summary of a ruling, and may not be strictly accurate, since SCOTUS customarily does not paint with such a broad brush. If I know anything about the Rehnquist court’s style of ruling, the precedent requiring following by _stare decisis_ would be something along the lines that although a sentence may be excessive in and of itself, it must be construed in the context of the legislative intent and purpose within the framework of the California criminal justice system of the three-strikes law. Note further that not all cases reaching Federal courts from the state systems arrive there under _habeas corpus_ review, which is specifically identified. Rehnquist and a majority of his colleagues feel strongly that the Warren and Burger courts and the lower courts under them abused _habeas corpus_ and have reined its use way back. ---
**Author:** ![Dodeca\_Aww\_Hell\_With\_It](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dodeca\_Aww\_Hell\_With\_It](https://boards.straightdope.com/u/Dodeca_Aww_Hell_With_It)\ **Post date:** [June 1, 2003, 8:45pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/4 "2003-06-01T20:45:36Z")
As to the question posed in the title of the OP, Hell no, because the result would be anarchy. And while one judge may find a SCOTUS decision unconscionable, another one may think it’s the best judicial ruling ever. Judges in lower courts aren’t supposed to rule based on their personal feelings on an issue, but rather on what the law as related to the issue at hand states. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [June 2, 2003, 12:32am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/5 "2003-06-02T00:32:26Z")
Judge Pregerson was free to issue opinions of the type he did because he knew his companions on the panel would provide the needed votes to rule “appropriately” on the appeals. He thus could vent is pique at the conservative holding of the Supreme Court in the two cases it decided on the “Three Strikes” law. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 2, 2003, 12:40am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/6 "2003-06-02T00:40:01Z")
In my opinion: No, an appellate judge may not choose not to follow an unconscionable Supreme Court decision. However, if the judge feels that the law as it stands should be applied differently in the case before him than it was in the SC case, he may seek to distinguish his case, so that it is not bound by precedent. (This is why, by the way, the conservative mantra of “judges must apply and not make the law” is well-nigh worthless–a jurist must necessarily make a judgment call in deciding whether a particular law or particular precedent applies in the first place…and if so, how.) ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [June 2, 2003, 12:57am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/7 "2003-06-02T00:57:48Z")
In the Newdow case, the ninth circuit states that the seventh circuit’s ruling upholding the pledge is in error because it ignores supreme court precedent. > **[FindLaw Legal Blogs - FindLaw](https://www.findlaw.com/legalblogs/)** > > Get the latest legal news and information, and learn more about laws that impact your everyday life by visiting FindLaw Legal Blogs. This is on page 23 in the footnotes. Note that this is a PDF file. IANAL, so I don’t have a clear view on this issue. The seventh circuit, according to the ninth circuit, ignored SC precedent, yet the seventh circuit case wasn’t overturned by the SC. So it appears that precedent may be ignored? Or was the ninth in error with regards to the seventh? I don’t want to turn this into a debate about the pledge. Just wanted to point out that to me, a layman, it is looking like the circuit courts do ignore SC precedent on occasion, and that this seems to be part of the system. Please correct me if I’m wrong. I learn something new all the time on these boards. ---
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [June 2, 2003, 1:03am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/8 "2003-06-02T01:03:15Z")
Just another thing, the reason I linked to that ruling is that I haven’t read too many court rulings, and that one happened to be in my memory, so I knew how to look it up. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 2, 2003, 1:39am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/9 "2003-06-02T01:39:21Z")
Sure, judges have to listen to their consciences, and should apply their consciences to their decisions. They are human beings. They are living the one and only lives they shall ever have. They gotta do the best they can in their life. Just being an automaton and rubber-stamping every lame-ass decision the higher courts (esp. the Rehnquist Court) hands down is not gonna cut it. It will transform them into so many soulless pieces of shit. Especially if those decisions lead them to commit the legal equivalent of atrocities, like locking a guy up for life for stealing a bicycle. After the 2000 election decision, how can any thinking judge respect the Supreme Court anyway? ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [June 2, 2003, 1:48am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/10 "2003-06-02T01:48:30Z")
> [@](#): > > \*Originally posted by Evil Captor \* > \*\*After the 2000 election decision, how can any thinking judge respect the Supreme Court anyway? \*\* :rolleyes: ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 2, 2003, 9:03pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/11 "2003-06-02T21:03:56Z")
You may find this interesting, **december** : a back-and-forth online discussion between Bashman, Timothy Sandefuer of the Pacific Legal Foundation, and the Federal Law Clerk who writes the “Curmudgeonly Clerk” blog, [here](http://curmudgeonlyclerk.blogspot.com/2003_04_13_curmudgeonlyclerk_archive.html#92860121) and more recently [here](http://curmudgeonlyclerk.blogspot.com) on the Curmudgeonly Clerk website. You’ll have to scroll down a little to find them; there are links to the original discussions as well. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 2, 2003, 9:09pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/12 "2003-06-02T21:09:59Z")
> [@](#): > > \*Originally posted by pravnik \* > \*\*You may find this interesting, **december** : a back-and-forth online discussion between Bashman, Timothy Sandefuer of the Pacific Legal Foundation, and the Federal Law Clerk who writes the “Curmudgeonly Clerk” blog, [here](http://curmudgeonlyclerk.blogspot.com/2003_04_13_curmudgeonlyclerk_archive.html#92860121) and more recently [here](http://curmudgeonlyclerk.blogspot.com) on the Curmudgeonly Clerk website. You’ll have to scroll down a little to find them; there are links to the original discussions as well. \*\* Thanks very much, **pravnik**. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 2, 2003, 9:24pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/13 "2003-06-02T21:24:03Z")
It seems quite difficult to argue that the judge should ignore both the legislature and the Supreme Court, and instead rely on his own conscience. Most of us would agree that he simply is not granted that prerogative. A closer question would be whether a Supreme Court Justice could follow _her_ conscience. That is, suppose a Justice believes that a certain law is not prohibited by the Constitution, but the law produces what the Justice believes is an unconcienable result. May she rule the law un-Constitutional, on grounds that are flimsy or aritificial? In other words, should her rule of thumb be, _The worse the result the flimsier the grounds needed to overturn_? I think many people would agree or somewhat agree. _Roe v. Wade_ is the obvious example – a sensible result with dreadful reasoning. But, if a Justice may follow her conscience, why shouldn’t an appellate judge follow his? Where should the line be drawn? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 2, 2003, 9:24pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/14 "2003-06-02T21:24:13Z")
Whoops; that first link is to the wrong page. Try [this](http://curmudgeonlyclerk.blogspot.com/2003_05_25_curmudgeonlyclerk_archive.html#94929260) instead, about halfway down the page: “disagreeable precedents and the rule of law.” And, you’re welcome. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [June 2, 2003, 10:12pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/15 "2003-06-02T22:12:39Z")
I think the 9th Circuit _may have_ gone about it all wrong (depending on the status of precedent in the California Supreme Court). Here’s the thing: The US Constitution defines our MINIMUM rights. State constitutions can offer greater protection (but not less). Recall the holding some years ago by the US Supreme Court that an arrest for sodomy under Georgia law did not violate the US Constitution. In a subsequent case, the Supreme Court of Georgia _interpreting language in the Georgia constitution nearly identical to that in the US Constitution_ found that the criminal statute in question violated the Georgia Constitution, thus rendering it invalid. _I.e._, even though the language of the two constitutions (state and federal) were very similar, the Georgia Supreme Court held that the state constitution was more protective. If we’re talking about a California state “three strikes” law, then the California Supreme Court could rule that the law violates the _California_ constitution, even if it doesn’t violate the US Constitution. Has this issue been raised in the California state courts? If not, and if I were a member of the 9th Circuit with moral qualms about the three-strikes law, I might have requested _certiorari_ (review) by the California Supreme Court, thus inviting them to find that the law violates the _state_ constitution. Worth a shot, anyway. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 2, 2003, 10:33pm UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/16 "2003-06-02T22:33:22Z")
> [@](#): > > I think many people would agree or somewhat agree. Roe v. Wade is the obvious example – a sensible result with dreadful reasoning. Roe vs Wade is based upon previous privacy decisions by the Supreme Court, like Griswold vs Connecticut. It’s not like they pulled it out of thin air or anything. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 3, 2003, 12:04am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/17 "2003-06-03T00:04:35Z")
> [@](#): > > A closer question would be whether a Supreme Court Justice could follow her conscience. That is, suppose a Justice believes that a certain law is not prohibited by the Constitution, but the law produces what the Justice believes is an unconcienable result. May she rule the law un-Constitutional, on grounds that are flimsy or aritificial? In other words, should her rule of thumb be, The worse the result the flimsier the grounds needed to overturn? I think many people would agree or somewhat agree. Roe v. Wade is the obvious example – a sensible result with dreadful reasoning. The Court has been notorious, from Marbury v. Madison (the first and classic example of it) on, for arriving at decisions that make the constitutional ruling the justices feel justified but also arrive at the conclusion the justices feel is in the interests of justice. There was a case a few decades ago when the justices, recognizing that the case would set precedent, went out of their way to (1) make a ruling on the constitutionality of the matter raised by the appellant, and then (2) rule that it was not applicable to the particular case under consideration. (I have completely forgotten the circumstances surrounding it, but remember it as a classic example of how to make the just decision and avoid a unconscionable result in the particular case under which it was raised.) > [@](#): > > Roe vs Wade is based upon previous privacy decisions by the Supreme Court, like Griswold vs Connecticut. It’s not like they pulled it out of thin air or anything. The problem here is that there is a school of jurisprudence, with respectable leaders, that feels that “privacy” has no place in the Constitution other than the very limited grounds of the Fourth Amendment’s illegal search and seizure clause. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 3, 2003, 1:06am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/18 "2003-06-03T01:06:13Z")
> [@](#): > > May she rule the law un-Constitutional, on grounds that are flimsy or aritificial? In other words, should her rule of thumb be, The worse the result the flimsier the grounds needed to overturn? I think many people would agree or somewhat agree. Roe v. Wade is the obvious example – a sensible result with dreadful reasoning. Many years before _Roe_, the Supreme Court said that the Due Process clause prohibits government actions that “shock the conscience”. I think that’s a pretty reasonable interpretation of that passage. If it “shocks the conscience”, then the action is without Due Process. I realize that Roe was decided on privacy, and not a “shocks the conscience” standard, but I think it could just as easily be decided that way if the States did things like chained pregnant women to their beds to prevent abortions. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [June 3, 2003, 2:49am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/19 "2003-06-03T02:49:45Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*There was a case a few decades ago when the justices, recognizing that the case would set precedent, went out of their way to (1) make a ruling on the constitutionality of the matter raised by the appellant, and then (2) rule that it was not applicable to the particular case under consideration. \*\* IANAL but if you are remembering correctly then it there was no ruling made on the constitutionality of the matter raised by the appellent. Courts don’t decide constitutional issues directly; they are only allowed to decide cases. Since the case didn’t rest on the side issue then any remarks by the court on the matter would be mere dicta and have no legal weight. It’s no different than when a conservative majority of the 5th Circuit tried to rule that the 2nd Amendment did confer an individual right to own weapons. Judge Robert Parker’s concurring opinion on [Emerson](http://www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm) began with this paragraph: > [@](#): > > I concur in the opinion except for Section V. I choose not to join Section V, which concludes that the right to keep and bear arms under the Second Amendment is an individual right, because it is dicta and is therefore not binding on us or on any other court. The determination whether the rights bestowed by the Second Amendment are collective or individual is entirely unnecessary to resolve this case and has no bearing on the judgment we dictate by this opinion. The fact that the 84 pages of dicta contained in Section V are interesting, scholarly, and well written does not change the fact that they are dicta and amount to at best an advisory treatise on this long-running debate. My position on judges voting their conscience instead of the law is that they should be thrown off the bench. Once established, courts should follow precedent. Period. Changing the law is the job of the legislature. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 3, 2003, 2:54am UTC](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982/20 "2003-06-03T02:54:25Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*Many years before _Roe_, the Supreme Court said that the Due Process clause prohibits government actions that “shock the conscience”. > > I think that’s a pretty reasonable interpretation of that passage. If it “shocks the conscience”, then the action is without Due Process. > > I realize that Roe was decided on privacy, and not a “shocks the conscience” standard, but I think it could just as easily be decided that way if the States did things like chained pregnant women to their beds to prevent abortions.\*\* Slow down there, guy. The “shocks the conscience” test – most recently applied in [County of Sacramento v. Lewis](http://supct.law.cornell.edu/supct/html/96-1337.ZO.html) – only applies to abusive executive action, not to laws passed by the legislature. It applies when a plaintiff is suing on the grounds that some executive action has deprived him of a basic civil right – i.e., the cops decided to bash his skull in. AFAIK, it has never been used to invalidate a law passed by a legislature. It would be contrary to precedent to invoke that particular test as a means to protect abortion rights. (I understand your “chained to the bed” language to be metaphorical; obviously, if the cops _literally_ chain a woman to her bed, then the shocks-the-conscience test does apply – not because of any connection to abortion, but because that kind of physical restraint is clearly abusive.) [Next page](https://boards.straightdope.com/t/may-an-appellate-judge-choose-not-to-follow-an-unconscionable-scotus-precedent/178982.md?page=2)