Slate legal analysts flagged what they say is one of the most brazen acts of judicial defiance in recent memory: a federal appeals court that broke a Supreme Court rule specifically about breaking Supreme Court rules.
In a 9-8 vote on Tuesday, the 5th U.S. Circuit Court of Appeals upheld Texas’s law requiring the King James Bible’s Ten Commandments to be posted in every public school classroom. While that ruling alone was stunning, Slate’s Alexis Romero and Mark Joseph Stern say the way the court got there should have every judge in the country doing a double-take.
Three years ago, the Supreme Court issued an unambiguous instruction to lower courts: never assume a precedent has been silently overruled. If a Supreme Court ruling “has direct application in a case,” the high court said flatly, the lower court must follow it, leaving it to the Supreme Court alone to overrule its own decisions.
The appeals court proceeded to do exactly what it was told not to do and declared a 1980 Supreme Court ruling, Stone v. Graham, effectively dead without waiting for the high court to weigh in.
“The 5th Circuit defied this command on Tuesday, and its excuse for doing so was rice-paper-thin,” the analysts said.
Romero and Stern argue the Supreme Court now faces an uncomfortable choice: bless the defiance and invite every lower court in the country to do the same, or slap down its own conservative allies in Texas.
“… Rewarding the 5th Circuit would be a perilous invitation to further insubordination. If the supermajority blesses the 5th Circuit’s gambit here, it will invite every other lower court to disregard past rulings and dare the justices to call them out,” the analysts said.
They concluded: “A court that tolerates such defiance eventually forfeits the right to demand obedience.”
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