Friday, February 5, 2021
"Binding" precedent may be thought to conflict with judicial freedom. But does it?
Suppose a judge on a a three-judge panel must decide an appeal in a federal circuit court of appeals in which one panel cannot overrule another. On such a court, only the court sitting en banc can overrule a prior panel decision.
Now suppose that the appeal to be decided is an "easy case" because the correct resolution follows straightforwardly from a prior panel decision. A judge in this later case thinks that the binding precedent was wrongly decided. But she recognizes the precedent is controlling. Because she wishes to rule lawfully, she applies the wrong but binding precedent to resolve the case before her. The full court then takes the case en banc.
Is this judge now sitting en banc more or less free than she was while sitting on the three-judge panel? It depends on what judicial freedom amounts to.
If judicial freedom is the ability to choose between contrary outcomes, then the lawful judge is more free en banc than on the panel. There was only one lawful outcome on the panel. En banc she has a choice. She can overrule the previously binding precedent or she can leave it standing. On this understanding, judicial freedom and binding law stand in opposition.
But what if judicial freedom is the ability to render judgment according to law? On this understanding, the lawful judge is less free sitting en banc than on the panel. The judge may fail to render judgment according to law when sitting en banc. She might make a mistake about what the law requires. No such mistake was possible while the "binding" precedent controlled her choice on the panel. On this understanding, judicial freedom and law are mutually reinforcing. It is easier to render judgment according to law the more and more clearly the law binds.
Given the dominance of the conception of freedom as the ability to choose between contrary outcomes, one might be suspicious that there's something funny going on with the second conception of judicial freedom. But isn't the ability to render judgment according to law the kind of judicial freedom we have in mind when we think about "judicial independence"? When we say that judges should rule without fear or favor? When we laud judicial impartiality?