Solum on Formalism

Larry Solum has a long and interesting discussion of constitutional formalism in this post. He argues, somewhat counterintuitively, that the best way to achieve constitutional formalism is for all courts, including the Supreme Court, to maintain a strong form of stare decisis, even though this would mean restricting courts' ability to overrule prior decisions that departed from the Constitution.

I don't have time to discuss his overall point, which I find provocative and well-worth-considering, but I would take issue with this step of his argument:

There is another way in which a concession with respect to vertical stare decisis has important implications for horizontal stare decisis in the Supreme Court. Enforcing a rule of vertical stare decisis requires the Supreme Court to itself adhere to a rule of horizontal stare decisis. Huh? Let me repeat that: if the Supreme Court actually enforces a doctrine of vertical precedent, then it must (at least partially) bind itself by a doctrine of horizontal precedent. Why? Imagine that a Circuit Court disregards a Supreme Court precedent and instead makes a decision based on its prediction of how the Supreme Court would likely decide the case if it were to go up on certiorari. And suppose the appellate judges are a good predictor of how the new formalist Supreme Court would in fact decide the case. What happens next? If the Supreme Court does not follow its own precedents and instead affirms the lower court's decision, then the Supreme Court will have followed the principle of constitutional exclusivism but it will have failed to enforce the rule of vertical stare decisis. If the Court does enforce vertical stare decisis and reverses the lower court that decided on the basis of the original meaning of the text, then the Supreme Court will in effect be following its own prior (and pre-formalist) precedents. The lesson is simple: consistent enforcement of vertical stare decisis requires a substantial degree of adherence to horizontal stare decisis.

Solum has constructed a scenario in which horizontal stare decisis conflicts with vertical stare decisis. Naturally, one version of stare decisis has to win, and one has to lose. But I'm not convinced that the rule of vertical stare decisis must predominate in all cases in order to remain a viable and meaningful rule. It seems to me that the Supreme Court could quite easily say, "In some cases, we might affirm a lower court's decision to depart from our prior precedents because we, in our Supreme authority, have ultimately decided that our own prior precedents were in error on that point. But lower courts will never be able to predict when and where we might decide on such a course of action; therefore the lower courts must still attempt to adhere to the traditional rule of vertical stare decisis, and we'll occasionally take cases just to reverse and embarrass lower courts that try to get ahead of the curve."

Of course, the Supreme Court wouldn't use exactly those words. But the point is that the Court's formulation of vertical stare decisis needn't be so inflexible that it automatically wins in those rare cases where it conflicts with horizontal stare decisis, thereby preventing the Court from overruling an erroneous prior decision.