Sunday, December 19, 2021
What Do You Do When a Superior Court Misses a Conflicting Precedent in a Decision that Affects Your Case?
Assume as you conduct your legal research that you come up with a decision that says exactly what you are hoping for and that the precedent, though rarely cited, remains good law. As you write, confident that the holding puts you in a strong position to prevail, the very court you are writing for comes out with a decision that states that the court has never endorsed the very proposition your newly discovered precedent establishes. You scour the new opinion to see how they distinguished the case you found, because, even upon a re-reading, it plainly conflicts with the court’s new holding. You find it is absent from the incompatible opinion – and went uncited in the briefs the court relied upon. How do you respectfully tell the court it is wrong?
I thought about those circumstances when I read the majority opinion in Whole Women’s Health v. Jackson, the case concerning the new “Texas Heartbeat Act,” which authorizes bounties for private litigants who sue those who perform or assist in abortions. In the decision, Justice Gorsuch wrote, “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”
The statement made me stop as I read. I realized that the key word to prevent a conflict might be “unqualified.” Still, the thrust of the statement seemed at odds with an older precedent that I have relied upon in the past and recently invoked in a brief. In England v. Louisiana State Bd. of Med. Examiners, the Court wrote that “[t]here are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” England, then, stands for the proposition that federal rights can be vindicated in federal court, and not be limited to state-court determinations, if federal jurisdictional requirements are satisfied.
Jackson plainly focused on standing as an obstacle to subject-matter jurisdiction, at least as to some defendants. For that reason, Jackson and England can be reconciled. However, in my hypothetical version of these events, what if the Supreme Court rejected federal jurisdiction because it decided that state court disposition of the case should be sufficient and relied on the absence of a decision like England to reach that conclusion when further research would have shown there was existing precedent?
An advocate in those circumstances will have several options to consider. First, you may conclude that a state-court decision may indeed be adequate or even preferable. State courts have authority to determine federal questions and are not bound by federal decisions by courts other than the Supreme Court. Still, any federal decisions that are contrary to your position may still have persuasive value or produce some deference in state court where the federal decisions are “numerous and consistent.”
Another option is to seek to harmonize the two decisions by finding a way to argue that the new decision represented an exceptional situation, an outlier, that can coexist with or be distinguished from the general principle established by your earlier precedent.
Another option is to argue that the older decision is good law, that the newer decision did not take it into account, and that the court should retain the older precedent. In my hypothetical version of what Jackson could have said, England not only provides an answer to the assumption made in “alternative Jackson” and thereby casts doubt on its reasoning for failing to address existing precedent as though it did not exist. Such an argument would need to point out that other doctrines depend on allowing vindication of federal rights in federal courts, so that more than one rarely cited precedent is at stake. If the court meets in panels, en banc reconsideration may be necessary.
The bottom line, then, is that an advocate needs to explore options carefully, but still may be able to use that dusty but useful precedent that others forgot existed.
 No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).
 Id. at *10.
 375 U.S. 411, 415 (1964).
 Johnson v. Williams, 568 U.S. 289, 305 (2013). See also, e.g., U.S., ex rel. U.S. Att'ys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014).
 Etcheverry v. Tri–Ag Service, Inc., 993 P.2d 366, 368 (Cal. 2000).