Following Lower-Court Precedent

Abstract

This Article examines the role of lower-court precedent in the U.S. Supreme Court’s decisionmaking. 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, the Article analyzes and evaluates 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, the Article examines the current Justices’ voting behavior and reasoning, over a period of several recent years, in cases in which the Court resolves splits in the lower courts. The conclusions shed light on broader debates over interpretive methodology and the Supreme Court’s role as the manager of a large judicial system.