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Darrell A. H. Miller††. Melvin G. Shimm Professor of Law, Duke University School of Law.
Eric Ruben and Joseph Blocher have done a tremendous service to constitutional scholarship with this empirical study of lower court cases in the ten-year wake of District of Columbia v. Heller. . Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018); see District of Columbia v. Heller, 554 U.S. 570 (2008). In a charged political atmosphere concerning guns and the Second Amendment, where claims abound but proof is scarce, the project is welcome. The late Jerome Frank hoped law would develop in such a way as to reject conjecture and romanticism and evaluate legal claims based “on moderately accurate knowledge of what has happened and is happening, and on informed guesses as to what can be made to happen.” . Jerome Frank, Mr. Justice Holmes and Non-Euclidean Legal Thinking, 17 Cornell L.Q. 568, 587 (1932). Working in the best tradition of the legal realists, Ruben and Blocher offer a resource that does just that.
I offer three observations about this splendid study. First, it empirically confirms my sense that originalism, as a method of constitutional interpretation, is a game that only the nine judges at the top of the federal hierarchy routinely play. Second, it cements my belief that empirical analysis of decisions can inform, but never really answer, the essential normative questions about “first class” versus “second class” rights. Third, it reminds me yet again that our system of constitutional law does have institutions, including Congress and the states, empowered to assess and administer public preferences concerning rights enforcement.
I have suggested elsewhere that originalism is a method of reasoning that only the nine Justices of the Supreme Court can apply with any regularity. . Darrell A. H. Miller, Peruta, the Home-Bound Second Amendment, and Fractal Originalism, 127 Harv. L. Rev. F. 238, 242 (2014) (“[The judicial hierarchy] stands as a serious institutional constraint on originalism as a methodology for anyone other than the nine Justices at the top of the pyramid.”). In speaking of “originalism” I speak of the most current version of the method, original public meaning originalism, which requires judicial evaluation of historical materials to discern the original public understanding of certain terms in the Constitution. As many others have noted, not only are lower federal court judges (and particularly state court judges) resource-constrained, they are also institutionally-constrained by their subordinate place in the judicial hierarchy. . See, e.g., William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2370 (2015) (“Nonexclusive originalists . . . generally accept that lower courts should rely on higher-court precedents rather than reasoning from first principles, and that is indeed what lower courts generally do.”); Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851, 888–89 (2014) (observing that “judicial decisionmaking in constitutional cases looks quite different at different levels of the hierarchy,” and that “[o]riginalism is an interpretive method that . . . is especially difficult in resource-constrained lower courts”); Lawrence Rosenthal, Originalism in Practice, 87 Ind. L.J. 1183, 1244 (2012) (“[A]uthentically originalist adjudication is something like the Loch Ness Monster—much discussed, but rarely encountered.”).
Lower federal court judges are, by the terms of Article I and III, “inferior courts” and state court judges, to the extent they adjudicate federal constitutional claims and adhere to their oath, are bound by decisions of the Supreme Court of the United States. See U.S. Const. arts. I, III; Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). Even if lower courts embarked on a full-employment program for historians of the Early Republic (and occasionally Reconstruction), we simply cannot have a stable hierarchical system of judicial review if every judge gets to disregard precedent and freelance every case as a matter of first impression. . This practice would be untenable with just about any judicial method, not just originalism. See Baude, supra note 4, at 2370 (“[T]here is a shared consensus under almost every theory (including originalism) that lower courts are bound by ‘vertical precedent.’”). If this means that lower courts are reneging on their oath to uphold the Constitution (as some have argued . Edward J. Melvin, Judicial Activism—The Violation of an Oath, 27 Cath. Law. 283, 284 (1982) (“[W]hen a judge takes his oath to uphold the Constitution he promises to carry out the intention of its framers.”)), so be it. . Compare Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 139 (Amy Gutmann ed., 1997) (suggesting that precedent “make[s] us say that what is false . . . must nonetheless be held to be true, all in the interest of stability”) with Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 346–48 (2016) (arguing that following precedent can be in conformity with one’s oath to uphold the constitution), and Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 420 (2013) (“Devising doctrine to effectuate what this Constitution says does not violate a judge’s oath—it fulfills it.”). These discussions are largely addressed to stare decisis in the Supreme Court, although they seem just as applicable to lower courts.
To date, I have operated on the bare assumption that lower courts are disinclined to conduct the kind of thorough, history-centric investigation of Second Amendment cases that the more adamant sections of Heller seem to require. Ruben and Blocher’s research appears to confirm my assumption. As they write, “[o]ur data provides support for the proposition – occasionally phrased as a complaint – that original historical analysis is not the sole driving force in Second Amendment cases.” . Ruben & Blocher, supra note 1, at 1491. They note, surprisingly, that lower courts have not substituted historical materials with precedent in their opinions (although there is some methodological ambiguity on this point), but are instead, unsurprisingly, relying on more familiar nonoriginalist tools—like tiers of scrutiny—to adjudicate Second Amendment cases. . Id. at 1494–96.
Ruben and Blocher’s conclusions about actual applied judicial methodology post-Heller casts further doubt on originalism’s suitability as a comprehensive method of constitutional reasoning. Originalism, it must be remembered, was sold as a form of restraint on all judges. But this promise continually runs into the problem of judicial administration. As everyone understands, the need to get to five votes on the Supreme Court means that thoroughgoing originalist opinions are going to be rare. So, until there are actually five votes to consistently and regularly engage in originalist opinion making, the trickle down of originalist precedent will be the aberration, not the norm.
Furthermore, this research suggests that the demands of managerial judging does and likely will continue to displace historical methods as state and federal judges turn to other, less cumbersome tools to clear their dockets, form panel coalitions, or get through the next election cycle. . Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 756–57 (2012) (noting that “[l]ower court judges have run into the reality that historical inquiries are extremely difficult and do not produce determinate answers,” and that lower court judges have “pulled toward an intermediate scrutiny approach that gives them the comfort of applying familiar formulas”). The Heller Court gave lower courts a broad license to experiment with historical methodologies, relatively unconstrained by binding precedent, and they (for the most part) have turned down the opportunity. It is possible that there may be ideological reasons for this move, but, as Heller itself shows, and as further historical research reveals, there’s nothing necessarily pro-right or pro-regulation about historical sources concerning firearms. There is plenty of historical material on both sides of this political issue. Hence, it may be that originalism as a practical decision making device is simply too costly and unwieldy for your average lower court judge. It seems likely, then, that originalism as a method of adjudication will remain a matter of intense debate among The Nine, the professoriate, and perhaps the Senate Judiciary Committee, but will continue to mean very little for the work-a-day decision making of the average jurist. . See Sanford Levinson, Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court, 68 Duke L.J. Online 17, 19–20 (2018) (“[T]he Supreme Court often acts as the equivalent of the Delphic Oracle, issuing opaque pronouncements behind impressive smoke and ritual incantations while leaving it up to the institutional priests serving on what the Constitution labels ‘inferior’ courts to provide genuine content to what has been said.”) (citing Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 786–87 (1970)).
What may surprise many is the success rate of Second Amendment claims. For all the hostility and indignation that is directed at the judiciary, particular circuits, or even particular judges who hear Second Amendment cases, it appears that, depending on the claim asserted, who asserts it, and in what court (all important caveats), an individual with a Second Amendment case has a decent shot at winning. . Overall, the success rates are low, but increase when one takes out criminal cases and pro-se litigation. See Ruben & Blocher, supra note 1, at 1473, 1477–79.
I have a prediction: future briefs opposing certiorari in Second Amendment cases will cite the Ruben/Blocher analysis as incontrovertible evidence that lower courts are enforcing the Constitution, and the rhetoric of “second-class right,” . Friedman v. City of Highland Park, 136 S. Ct. 447, 450 (2015) (Thomas, J., dissenting from denial of certiorari). “constitutional orphan,” . Silvester v. Becerra, 138 S. Ct. 945, 952 (2018) (Thomas, J., dissenting from denial of certiorari). anti-gun “bigotry” . Clayton E. Cramer, Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?, 8 ConLawNOW 1, 15 (2016). and “massive resistance” . Petition for a Writ of Certiorari, at 3, Drake v. Jerejian, 134 S. Ct. 2134 (No. 13-827) (filed Jan. 9, 2014). in Second Amendment cert petitions will continue apace. That’s because the question of the adequacy of constitutional enforcement can only be answered at the margins by the kind of empirical work Ruben and Blocher have produced. Inescapably, whether you think the Second Amendment is being over- or under-enforced, or optimally-enforced, is a normative judgment dependent on other factors.
The authors’ data is valuable empirical information, but it can answer only a limited set of questions of normative significance. Is the right not being enforced or is it being universally enforced? Is the success rate zero percent or a hundred percent? At those two extremes, for any constitutional provision that has judicially enforceable legal content, we could make a normative claim like “the right is under-enforced” or “the right is over-enforced”—because we expect constitutional litigation to have some success and failure. . Of course, there may be some kinds of constitutional claims where we expect zero success because the constitutional terms no longer have legal content. The Fugitive Slave Clause is one such example. See U.S. Const. art. IV, § 2, cl. 3. But once we move past that binary, there is very little else the data can tell us normatively. The data can confirm or falsify empirical claims about success rates, it can inform how we may think about the consequences of more or less rights enforcement, but it cannot answer the prior question of what the baseline rate of success should be.
But what of comparisons across constitutional rights? Certainly, as Justice Thomas recently argued, we can say something about “first class” and “second class” rights by reference to how the courts treat other claims. . Silvester, 138 S. Ct. at 952 (Thomas, J., dissenting from denial of certiorari). But that presumes that variation in constitutional rights litigation can be controlled, so that the rights are rendered interchangeable, and thus one can make meaningful statements about the success rates of gun rights claims versus abortion rights claims. . Adam Samaha and Roy Germano in their piece attempt to do just that, but are careful to note that it depends on a comfort with “switch[ing] the constitutional clause cited and leav[ing] everything else about a case the same.” See Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right? 68 Duke L.J. Online 57, 58(2018). I do not have the expertise to evaluate such a statistical maneuver, but as a consumer of empirical data, I’m skeptical.
Further, as a casual observer, it seems apparent that people do not think of constitutional rights as fungible, and neither do judges. Indeed, as I’ve written elsewhere, it is fairly clear that both citizens and judges prioritize rights. . Darrell A. H. Miller, The Second Amendment and Second-Class Rights, Harv. L. Rev. Blog (Mar. 15, 2018), https://blog.harvardlawreview.org/the-second-amendment-and-second-class-rights [https://perma.cc/P427-5YUM]. There’s no outpouring of public outrage because Colgrove v. Battin permits six members of a federal civil jury rather than twelve. . Colgrove v. Battin, 413 U.S. 149, 157–60 (1973). I’m also aware of no judges who insist on imposing the grand jury requirement on the states, because of fidelity to the Constitution. If both the public and the judiciary tend to prioritize rights, and if success rates reflect the kinds of rights individuals tend to care enough about to litigate, then I’m not certain what to make of cross-right comparisons either descriptively or normatively.
Finally, the normative question of rights enforcement is in some sense inextricable from the purpose of the right. . Elsewhere, Professor Blocher and I have elaborated on what some of these purposes could be. See Joseph Blocher & Darrell A. H. Miller, The Positive Second Amendment: Rights, Regulation, and the Future of Heller 148–72 (2018); Joseph Blocher & Darrell A. H. Miller, What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment, 83 U. Chi. L. Rev. 295, 302, 347–54 (2016). For example, if one believes the Second Amendment right is a right to keep and bear arms for the purpose of deterring despotic government, then all the cases in which one party loses a Second Amendment challenge to taking a firearm into a government building is evidence of under-enforcement. By contrast, if one believes that such a purpose has little or no legal (as opposed to moral or political) content, then such a challenge would not count as under-enforcement, but proper enforcement. Again, Ruben and Blocher have done us all a service by making some kinds of descriptive claims about doctrine falsifiable, but we cannot expect (and they do not to claim) that their research will answer these fraught normative issues.
Forty years ago, Lawrence Sager wrote his influential Fair Measure: The Legal Status of Underenforced Constitutional Norms. . Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978). His basic thesis was that there are a number of passages in the Constitution, the Equal Protection Clause being the most obvious, that contain more normative content than the Supreme Court is willing to enforce. . His argument was far more sophisticated than this one observation. For example, Sager made a distinction between declining to enforce rights for “institutional” reasons having to do with judicial competence and ability, and “analytical” reasons, having to do with their understanding of what the right actually prohibits or permits. See id. at 1239–40. For an excellent treatment of this distinction, and the complexities of Congressional enforcement of Second Amendment rights, see William D. Araiza, Arming the Second Amendment—And Enforcing the Fourteenth, 74 Wash. & Lee L. Rev. 1801 (2017). Since that time, scholars have referenced Sager in analyzing Second Amendment claims, both before and after Heller. . See, e.g., Michael P. O’Shea, The Steepness of the Slippery Slope: Second Amendment Litigation in the Lower Federal Courts and What It Has to Do with Background Recordkeeping Legislation, 46 Conn. L. Rev. 1381, 1412 (2014) (“Sager’s narrow definition of ‘judicial underenforcement’ remains quite relevant to the post-Heller Second Amendment.”); Brannon P. Denning, Gun Shy: The Second Amendment as an “Underenforced Constitutional Norm”, 21 Harv. J.L. & Pub. Pol’y 719, 721 (1998).
Sager’s analysis relates to the normative question of enforcement in this respect: Congress and the states can and often do legislate in ways that fill the gap between a community’s taste for rights enforcement and actual judicial enforcement of rights. This does not necessarily mean that these legislative products are, or should be, considered “constitutional law.” . They may be something like the “small c” constitution, rather than the “big C” constitution. David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1459 (2001) (presupposing “a difference between what might be called the small-“c” constitution—the fundamental political institutions of a society, or the constitution in practice—and the document itself”). For more on this distinction, see William N. Eskridge, Jr., America’s Statutory “Constitution”, 41 U.C. Davis L. Rev. 1, 18 (2007) and Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408 (2007). That is, many states and even Congress may want to protect concealed carry as a Second Amendment imperative, but nothing about those innovations makes concealed carry Second Amendment law. . pan> . See Blocher & Miller, supra note 24, at 189, 194. In the same way that nothing about the Civil Rights Act of 1964 makes Title II part of the Fourteenth Amendment, but the Civil Rights Act does express certain values concerning freedom, citizenship, and equal protection; so too can sub-constitutional legislation express political sentiment about constitutional values concerning the right to keep and bear arms, without itself becoming judicially enforceable constitutional law.
The advantage of such an approach is that it channels the fractious issues surrounding whether gun rights are adequately enforced into the kinds of institutions that our post-Reconstruction Constitution often places them: Congress and the states. Scholarship like the Ruben/Blocher study then can have a significant impact in framing and informing these normative policy discussions about whether, how, and to what extent the courts are enforcing the right to keep and bear arms and whether such sub-constitutional legislative innovations are necessary or desirable. . Of course, such innovations may come into conflict with other kinds of constitutional values housed in other kinds of institutions, which courts may then have to adjudicate. See Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017) (striking down gun protective legislation on First Amendment free speech grounds).
Copyright© 2018 Darrell A. H. Miller.
† Melvin G. Shimm Professor of Law, Duke University School of Law.
 Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018); see District of Columbia v. Heller, 554 U.S. 570 (2008).
 Jerome Frank, Mr. Justice Holmes and Non-Euclidean Legal Thinking, 17 Cornell L.Q. 568, 587 (1932).
 Darrell A. H. Miller, Peruta, the Home-Bound Second Amendment, and Fractal Originalism, 127 Harv. L. Rev. F. 238, 242 (2014) (“[The judicial hierarchy] stands as a serious institutional constraint on originalism as a methodology for anyone other than the nine Justices at the top of the pyramid.”). In speaking of “originalism” I speak of the most current version of the method, original public meaning originalism, which requires judicial evaluation of historical materials to discern the original public understanding of certain terms in the Constitution.
 See, e.g., William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2370 (2015) (“Nonexclusive originalists . . . generally accept that lower courts should rely on higher-court precedents rather than reasoning from first principles, and that is indeed what lower courts generally do.”); Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851, 888–89 (2014) (observing that “judicial decisionmaking in constitutional cases looks quite different at different levels of the hierarchy,” and that “[o]riginalism is an interpretive method that . . . is especially difficult in resource-constrained lower courts”); Lawrence Rosenthal, Originalism in Practice, 87 Ind. L.J. 1183, 1244 (2012) (“[A]uthentically originalist adjudication is something like the Loch Ness Monster—much discussed, but rarely encountered.”).
Lower federal court judges are, by the terms of Article I and III, “inferior courts” and state court judges, to the extent they adjudicate federal constitutional claims and adhere to their oath, are bound by decisions of the Supreme Court of the United States. See U.S. Const. arts. I, III; Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).
 This practice would be untenable with just about any judicial method, not just originalism. See Baude, supra note 4, at 2370 (“[T]here is a shared consensus under almost every theory (including originalism) that lower courts are bound by ‘vertical precedent.’”).
 Compare Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 139 (Amy Gutmann ed., 1997) (suggesting that precedent “make[s] us say that what is false . . . must nonetheless be held to be true, all in the interest of stability”) with Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 346–48 (2016) (arguing that following precedent can be in conformity with one’s oath to uphold the constitution), and Randy E. Barnett, The Gravitational Force of Originalism, 82 Fordham L. Rev. 411, 420 (2013) (“Devising doctrine to effectuate what this Constitution says does not violate a judge’s oath—it fulfills it.”). These discussions are largely addressed to stare decisis in the Supreme Court, although they seem just as applicable to lower courts.
 Ruben & Blocher, supra note 1, at 1491.
 Allen Rostron, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 756–57 (2012) (noting that “[l]ower court judges have run into the reality that historical inquiries are extremely difficult and do not produce determinate answers,” and that lower court judges have “pulled toward an intermediate scrutiny approach that gives them the comfort of applying familiar formulas”).
 See Sanford Levinson, Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court, 68 Duke L.J. Online 17, 19–20 (2018) (“[T]he Supreme Court often acts as the equivalent of the Delphic Oracle, issuing opaque pronouncements behind impressive smoke and ritual incantations while leaving it up to the institutional priests serving on what the Constitution labels ‘inferior’ courts to provide genuine content to what has been said.”) (citing Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 786–87 (1970)).
 Overall, the success rates are low, but increase when one takes out criminal cases and pro-se litigation. See Ruben & Blocher, supra note 1, at 1473, 1477–79.
 Friedman v. City of Highland Park, 136 S. Ct. 447, 450 (2015) (Thomas, J., dissenting from denial of certiorari).
 Silvester v. Becerra, 138 S. Ct. 945, 952 (2018) (Thomas, J., dissenting from denial of certiorari).
 Clayton E. Cramer, Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?, 8 ConLawNOW 1, 15 (2016).
 Petition for a Writ of Certiorari, at 3, Drake v. Jerejian, 134 S. Ct. 2134 (No. 13-827) (filed Jan. 9, 2014).
 Of course, there may be some kinds of constitutional claims where we expect zero success because the constitutional terms no longer have legal content. The Fugitive Slave Clause is one such example. See U.S. Const. art. IV, § 2, cl. 3.
 Silvester, 138 S. Ct. at 952 (Thomas, J., dissenting from denial of certiorari).
 Adam Samaha and Roy Germano in their piece attempt to do just that, but are careful to note that it depends on a comfort with “switch[ing] the constitutional clause cited and leav[ing] everything else about a case the same.” See Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right? 68 Duke L.J. Online 57, 58(2018).
 This conclusion presumes that the features of “intermediate scrutiny” for one right are functionally equivalent to “intermediate scrutiny” for another right, a proposition that may not be descriptively accurate. See Jamal Greene, The Age of Scalia, 130 Harv. L. Rev. 144, 167 (2016) (suggesting that different rights are getting their own “bespoke doctrinal formula”).
 Darrell A. H. Miller, The Second Amendment and Second-Class Rights, Harv. L. Rev. Blog (Mar. 15, 2018), https://blog.harvardlawreview.org/the-second-amendment-and-second-class-rights [https://perma.cc/P427-5YUM].
 Colgrove v. Battin, 413 U.S. 149, 157–60 (1973).
 Elsewhere, Professor Blocher and I have elaborated on what some of these purposes could be. See Joseph Blocher & Darrell A. H. Miller, The Positive Second Amendment: Rights, Regulation, and the Future of Heller 148–72 (2018); Joseph Blocher & Darrell A. H. Miller, What is Gun Control? Direct Burdens, Incidental Burdens, and the Boundaries of the Second Amendment, 83 U. Chi. L. Rev. 295, 302, 347–54 (2016).
 Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978).
 His argument was far more sophisticated than this one observation. For example, Sager made a distinction between declining to enforce rights for “institutional” reasons having to do with judicial competence and ability, and “analytical” reasons, having to do with their understanding of what the right actually prohibits or permits. See id. at 1239–40. For an excellent treatment of this distinction, and the complexities of Congressional enforcement of Second Amendment rights, see William D. Araiza, Arming the Second Amendment—And Enforcing the Fourteenth, 74 Wash. & Lee L. Rev. 1801 (2017).
 See, e.g., Michael P. O’Shea, The Steepness of the Slippery Slope: Second Amendment Litigation in the Lower Federal Courts and What It Has to Do with Background Recordkeeping Legislation, 46 Conn. L. Rev. 1381, 1412 (2014) (“Sager’s narrow definition of ‘judicial underenforcement’ remains quite relevant to the post-Heller Second Amendment.”); Brannon P. Denning, Gun Shy: The Second Amendment as an “Underenforced Constitutional Norm”, 21 Harv. J.L. & Pub. Pol’y 719, 721 (1998).
 They may be something like the “small c” constitution, rather than the “big C” constitution. David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1459 (2001) (presupposing “a difference between what might be called the small-“c” constitution—the fundamental political institutions of a society, or the constitution in practice—and the document itself”). For more on this distinction, see William N. Eskridge, Jr., America’s Statutory “Constitution”, 41 U.C. Davis L. Rev. 1, 18 (2007) and Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408 (2007).
 See Blocher & Miller, supra note 24, at 189, 194.
 Of course, such innovations may come into conflict with other kinds of constitutional values housed in other kinds of institutions, which courts may then have to adjudicate. See Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017) (striking down gun protective legislation on First Amendment free speech grounds).

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Thomas Scott Woodward, United States Attorney, R. Richard Love, III, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Stephen J. Greubel, Ungerman & Iola, Tulsa, Oklahoma, for Defendant-Appellant.
It is undisputed that Suitor was involved in a conspiracy to cash counterfeit checks drawn on business accounts. The three other individuals involved in the conspiracy included an eighteen-year-old male, Jeremy Isbell, and twin sisters, both minors. The counterfeiting scheme was first discussed at Suitor's home some time during the Labor Day weekend of 1998. Suitor admitted that the two minor girls were at his home during the initial discussion.
One of the co-conspirators thereafter purchased a computer software program used to print business checks. Suitor installed the software on his home computer. Using information from a paycheck he received from his employer, Suitor printed several counterfeit checks drawn on the employer's account. The checks were signed by one of the minor girls. Isbell cashed three of the checks resulting in a loss to NationsBank of approximately $4,128.18.
On September 18, 1998, the two minor girls obtained several additional counterfeit checks. One girl signed the checks and the other presented them for payment. The girls cashed a total of ten checks on September 18th, resulting in a loss to NationsBank of approximately $6,266.77. Although Suitor disclaims any prior knowledge of the girls' activities on September 18th, one of the girls testified before the grand jury that Suitor had created and printed half of the checks cashed that day. In addition, Suitor's fingerprint was found on one of the checks. On September 19, 1998, Isbell cashed three counterfeit checks at various NationsBank branches. The proceeds from these checks totaled approximately $2,941.47.
In late September, the four individuals decided to print additional counterfeit business checks. These checks were drawn on a Central Crude Corporation account; the account number was obtained from a royalty check Suitor received from Central Crude Corporation. One of the girls testified that all four individuals were present when Suitor printed these checks on his home computer. The checks were signed using a signature stamp. On September 30, 1998, Suitor and one of the minor girls drove Isbell to several NationsBank locations. Isbell successfully cashed three of the counterfeit Central Crude Corporation checks. The loss to NationsBank from these three checks totaled approximately $4,076.76. When Isbell attempted to cash the fourth check, bank employees contacted the Tulsa Police Department and stalled Isbell until officers arrived.
Suitor was named in a two-count indictment filed on November 3, 1999, and was arrested on December 14, 1999. A superceding indictment was filed on February 8, 2000. Suitor pleaded guilty to two of the counts in the superceding indictment: conspiracy to utter a forged security of an organization, and false representation of a social security account number. See 18 U.S.C. §§ 371, 513(a); 42 U.S.C. § 408(a)(7)(B). In the PSR prepared before sentencing, the probation officer recommended, inter alia, a four-level increase in Suitor's offense level because the loss amount exceeded $20,000; a two-level increase because Suitor used a minor to commit the conspiracy offense; and an additional two-level increase because Suitor acted as an organizer, leader, manager, or supervisor while committing the offense of conviction. See U.S.S.G. §§ 2F1.1(b)(1)(E), 3B1.4, 3B1.1(c). The PSR also recommended that Suitor's base offense level be decreased two levels for acceptance of responsibility. See U.S.S.G. § 3E1.1(a).
Suitor filed an objection to the PSR and an addendum was prepared. The two-level increase pursuant to U.S.S.G. § 3B1.1(c) based on Suitor's role in the offense was removed from the PSR but the remaining recommended increases and decrease to Suitor's base offense level were retained. At the sentencing hearing, the district court found that Suitor was responsible for $21,493.12 in losses; that Suitor was an organizer and leader of the conspiracy; that Suitor used the minor girls in the commission of the offense; and that Suitor was not entitled to a two-level decrease for acceptance of responsibility because he testified untruthfully at the sentencing hearing. Suitor filed this appeal challenging the district court's determinations on these four sentencing issues.
This court reviews a district court's factual findings relating to sentencing for clear error and reviews legal conclusions de novo. See United States v. Spencer, 178 F.3d 1365, 1367 (10th Cir. 1999). Suitor first contends the district court erred when it concluded he was responsible for the losses suffered by NationsBank from the counterfeit checks cashed by his co-conspirators on September 18, 1998 and September 19, 1998. The district court included these losses to arrive at the conclusion that the total loss exceeded $20,000, thereby warranting a four-level increase to Suitor's base offense level pursuant to U.S.S.G. § 2F1.1(b)(1)(E).
"In a conspiracy case, loss is calculated on the basis of all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction . . . ." United States v. Schluneger, 184 F.3d 1154, 1159 (10th Cir. 1999) (quotation omitted). Count I of the superceding indictment charged Suitor with committing all the overt acts of September 18, 1998 and September 19, 1998. In his plea agreement, Suitor admitted that he "knowingly, willfully, and intentionally committed or caused to be committed the acts constituting the crimes alleged in Count I" of the superceding indictment. By admitting legal responsibility for the acts of his co-conspirators on September 18, 1998 and September 19, 1998, Suitor necessarily admitted that those acts were reasonably foreseeable and were undertaken in furtherance of the conspiracy. See United States v. Brewer, 983 F.2d 181, 185 (10th Cir. 1993) ("A conspiracy participant is legally liable for all reasonably foreseeable acts of his or her coconspirators in furtherance of the conspiracy"). This court, therefore, concludes that there is sufficient evidence in the record to support the district court's finding that Suitor was responsible for losses in excess of $20,000. Thus, Suitor's base offense level was properly increased by four levels pursuant to U.S.S.G. § 2F1.1(b)(1)(E).
Suitor next argues that the district court erroneously found that he intentionally used the minors in the commission of the conspiracy offense. The sentencing guidelines provide that a defendant's base offense level should be increased two levels if the defendant "used or attempted to use a person less than eighteen years of age to commit the offense." U.S.S.G. § 3B1.4. The application notes to this sentencing guideline define the term "used or attempted to use" as encompassing "directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting." Id. at cmt. n.1.
In his plea agreement, Suitor admitted that he "conspired with [Isbell], and two juvenile females . . . to manufacture and utter counterfeit checks drawn on the NationsBank accounts of two businesses . . . ." The district court relied on Suitor's admission that the minors were involved in the conspiracy to support its conclusion that Suitor used the minor girls in the commission of the offense.
On appeal, Suitor readily admits that the two minors were a part of the conspiracy. He argues, however, that he did not "use" the minors and that he never intentionally involved them in the conspiracy. Suitor contends that the government was required to produce some evidence that he actively involved the minors in the conspiracy to support the imposition of the § 3B1.4 increase but failed to do so.
Pursuant to the sentencing guidelines, the two-level § 3B1.4 increase is only applicable if a defendant directs, trains, or in some other way affirmatively engages the minor participant in the crime of conviction. See U.S.S.G. § 3B1.4, cmt. n.1. The evidence, therefore, must demonstrate more than the simple fact that Suitor was involved in a conspiracy with the minors. See United States v. Parker, 241 F.3d 1114, 1121 (9th Cir. 2001). Based on this court's review of the record, however, we conclude that sufficient evidence was presented to the district court to enable that court to conclude Suitor "used" the girls as that term is defined in § 3B1.4. Specifically, Isbell testified at the sentencing hearing that Suitor instructed all three co-conspirators, inter alia, on which banks to visit and how to dress when presenting the checks. Additionally, one of the minors testified before the grand jury(2) that Suitor counseled them on how to behave if they were caught while cashing a counterfeit check. The district court's finding that Suitor used the minors in the commission of the offense of conviction is supported by the record and, thus, is not clearly erroneous. The court properly increased Suitor's base offense level two levels pursuant to U.S.S.G. § 3B1.4.
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, cmt. n.4. The testimony presented at the sentencing hearing included statements made by Suitor's co-conspirators that Suitor: instructed them on how to use the computer software to print the checks and that Suitor's computer was used to print the checks; provided the account numbers used to print all the checks; furnished the paper upon which the checks were printed; instructed them on how to dress and conduct themselves when cashing the counterfeit checks; decided which banks to visit; advised them on what to expect when the check was presented to the teller; and warned them of the consequences if one or all were caught. The district court, after hearing this evidence, concluded that Suitor was a leader and organizer and increased his base offense level by two levels pursuant to § 3B1.1(c). The district court's finding that Suitor was a leader or organizer is amply supported by the evidence presented at the sentencing hearing and, thus, is not clearly erroneous.
The district court also concluded that Suitor's testimony regarding the involvement of the minors in the conspiracy was not truthful and, accordingly, refused to decrease his offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). Suitor contends that the district court's conclusion that he lied during his sentencing hearing was clearly erroneous because the district court improperly construed his legal arguments as untruthful statements. Suitor maintains that the court should have granted the acceptance of responsibility decrease.
The district court's finding that Suitor's testified untruthfully at the sentencing hearing is supported by the record. At the hearing, Suitor continually denied that he used the minors in the commission of the offense. As discussed, supra, however, the district court's conclusion to the contrary was not clearly erroneous. Consequently, the court's conclusion that Suitor acted in a manner inconsistent with acceptance of responsibility by continually denying relevant conduct is also not clearly erroneous. See U.S.S.G. § 3E1.1, cmt. n.1(a) ("[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility."). This district court did not err in denying Suitor a decrease pursuant to § 3E1.1.
This court concludes that the factual findings made by the district court at Suitor's sentencing hearing are supported by the record and thus are not clearly erroneous. Accordingly, the sentence imposed by the district court is hereby affirmed.
2.Portions of the minors' grand jury testimony were read into the record at Suitor's sentencing hearing.


1. The Hotel is a place of public accommodation within the meaning of 42 U.S.C. § 12181(7) because, among other things, it is "an inn, hotel, motel, or other place of lodging." 42 U.S.C. § 12181 (7) (A). See 28 C.F.R. § 36.104.
2. Hudson Sheraton Corporation, LLC (the "Owner and Operator") is a public accommodation within the meaning of Title III of the ADA because it owns and operates the Hotel, a place of public accommodation. See 28 C.F.R. § 36.201(b).
3. This Agreement shall be binding on the Owner and its employees and agents, subject to Paragraph 19 herein, as long as the Owner continues to own the Hotel and shall be binding on the Operator and its employees and agents, subject to Paragraph 19 herein, as long as the Operator continues to operate the Hotel. In the event the Owner seeks to transfer or assign all or part of its interest in the Hotel, and the successor or assignee intends on carrying on the same or similar use of the Hotel, as a condition of sale the Owner shall obtain the written accession of the successor or assignee to any obligations remaining under this Agreement for the remaining term of this Agreement.
4. For purposes of this Agreement, the term "Standards" means the ADA Standards for Accessible Design, 28 C.F.R. Part 36, Appendix A.
5. For purposes of this Agreement, the term "accessible" means in compliance with the Standards.
6. For purposes of this Agreement, the term "alterations" means a change to the Hotel that affects or could affect the usability of the Hotel or any part thereof and includes, but is not limited to, remodeling, renovation, rehabilitation, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full height partitions. Normal maintenance, re-roofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the Hotel.
7. The Hotel shall ensure that its main public entrance is accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility. For purposes of this Agreement, the Hotel shall be considered in compliance with this Paragraph if it maintains its main public entrance in the condition as it existed at the time of the Government's inspection on January 24, 2006. The Hotel shall notify the United States, through undersigned counsel, in writing, if it makes any alteration of the main public entrance during the term of this Agreement.
8. The Hotel shall ensure that its registration counter (or any auxiliary counter) complies with Section 7.2 of the Standards, or that the Hotel provides equivalent facilitation as provided in Section 7.2(2)(iii) of the Standards. For purposes of this Agreement, the Hotel shall bring its registration counter into compliance with this Paragraph, or provide an auxiliary registration counter within 6 months.
9. The Hotel agrees to continue to maintain a TTY at the front desk so that Hotel personnel can communicate with persons who are deaf, hard of hearing, or have speech impairments.
10. To enhance accessibility for individuals with disabilities, the Hotel agrees that the Hotel shall take the following steps within the time periods specified: First, within nine months after the effective date of this Agreement, the Hotel agrees to conduct, and maintain a record of, a self evaluation of the rooms that the Hotel currently designates as its "accessible" rooms to identify any designated "accessible" room that does not comply with Section 9.2.2 of the Standards. Second, within three years after the effective date of the Agreement, the Hotel agrees to eliminate, to the extent readily achievable, any barriers to access identified during its self evaluation, and shall provide 21 units, sleeping rooms or suites in compliance with Section 9.2.2 of the Standards to the extent readily achievable; a total of 7 of these 21 units shall have accessible roll-in showers.
11. To provide persons with disabilities a range of options equivalent to the options available to other persons served by a hotel, the Standards obligate hotels to disperse their accessible rooms among the various classes of sleeping accommodations available. Standards § 9.1.4 (1). Factors to be considered include room size, cost, amenities provided, and the number of beds provided. Id. The Hotel will ensure that, within two years after the effective date of this Agreement, it offers at least one accessible room in each of the following classes of sleeping accommodations: Standard Room with 2 Double Beds, Standard Room with King Bed, Suites.
12. To enhance accessibility for individuals with hearing impairments, the Hotel shall provide a total of 35 units that are accessible to persons with hearing impairments. The Hotel may satisfy the requirements of this paragraph either by providing units that are in compliance with Section 9.3.1 of the Standards or by providing equivalent facilitation in compliance with Section 9.3.2 of the Standards. To the extent the Hotel provides rooms that comply with Section 9.3.1 of the Standards, the Hotel shall complete the construction of such rooms within three years after the effective date of the Agreement. To the extent the Hotel provides equivalent facilitation that complies with Section 9.3.2 of the Standards, the Hotel shall ensure that the Hotel is able to provide, at the time of check-in for guests who have reserved a room at least twenty four hours in advance, and wi thin three hours for all other guests, either itself or through pooling arrangements with other hotels located in the New York City area, rental or leasing arrangements with vendors, or other effective methods, portable communication devices and install sufficient electrical outlets (including outlets connected to the Hotel's central alarm system) and telephone wiring in units to enable persons with hearing impairments to utilize the portable communication devices within nine months after the effective date of the Agreement. Standards § 9.1.3. If at any point during the term of this Agreement, the Hotel is unable to provide sufficient accessible units to individuals with hearing impairments, as required under this paragraph, the Hotel shall promptly notify the United States in writing, through the undersigned counsel.
13. The Hotel shall establish a written policy specifically addressing the provision of services to individuals with disabilities.
(j) Hotel staff members that are reasonably expected to have contact with guests of the Hotel shall be trained to offer assistance, upon request, to persons with disabilities who cannot transport their luggage to/from their guestrooms/suites and who may need assistance in locating guestrooms and Hotel amenities (see 28 C.F.R. § 36.302(a)).
15. The Owner and Operator acknowledge and agree that any alteration to the Hotel shall comply with the Standards to the maximum extent feasible. The Owner and Operator further acknowledge and agree that if an alteration affects or could affect the usability of or access to an area of the Hotel that contains a primary function, that alteration shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountain serving the altered area are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, unless the cost and scope of such alterations is disproportionate to the cost of the overall alteration. Pursuant to paragraphs 7 and 8 of this Agreement, the Hotel shall promptly notify the United States in writing if it makes any alterations to the main public entrance or registration counter during the term of this Agreement. With the exception of alterations to the main public entrance or the registration counter, the Owner and Operator agree to notify the United States by January 31st, in writing, of any alterations to the Hotel during the term of this Agreement commenced during the preceding calendar year and shall, in that notification, specify the steps taken to ensure that the alterations comply with the Standards to the maximum extent feasible.
16. Every year during the term of this Agreement on the anniversary date of the effective date of the Agreement, the Hotel shall provide to the United States a narrative report of the actions taken during the reporting period to remove any barriers to access and otherwise enhance accessibility for individuals with disabilities at the Hotel and any plans for action concerning ADA compliance in the coming year. The report shall include as an exhibit copies of any complaint, whether formal or informal, received the during the reporting period alleging that the Hotel was not being operated in compliance with Title III of the ADA or otherwise discriminated against any person on account of disability with respect to accessibility to the Hotel.
17. The Owner and Operator of the Hotel shall cooperate in good faith with any and all reasonable requests by cooperating in good faith with any and all reasonable requests by the United States for access to the Hotel and for information and documents concerning the Hotel's compliance with this Agreement and the ADA.
18. The United States shall have the right to verify compliance with this Agreement and the ADA, both as set forth in this Agreement and through any means available to the general public, including visits to the public areas of the Hotel and communications with Hotel staff. The United States shall have the right to inspect the Hotel at reasonable times upon ten (10) business days advance written notice to the Owner and Operator.
19. If the United States believes that this Agreement or any of its requirements has been violated, it will notify the Owner and Operator of the Hotel in writing and attempt to resolve the issue or issues in good faith. If the United States and the Owner and Operator of the Hotel are unable to reach a satisfactory resolution of the issue or issues, the United States may commence a civil action against the Owner and/or Operator, but not any of their respective employees or agents, in the united States District Court for the Southern District of New York to enforce the terms of this Agreement and/or the ADA.
20. In consideration for the Hotel's timely performance of all of its obligations under this Agreement, the United States agrees to discontinue the Compliance Review of the Hotel, except as provided in the Enforcement portion of this Agreement. The United States reserves the right to investigate any complaint it receives concerning the Hotel, to initiate future compliance reviews concerning the Hotel with respect to any aspect of the Hotel or its operation not expressly addressed in Parts III through VIII of this Agreement, and to investigate and commence a civil action with respect to any violation of Title III of the ADA. In the event the United States receives and investigates an ADA complaint concerning the Hotel, or commences any future compliance review concerning the Hotel, nothing in this Agreement shall limit the scope of any investigation or compliance review of the Hotel or preclude the United States from seeking relief beyond that required under this Agreement with respect to items not addressed in Parts III through VIII of this Agreement, provided the Hotel complies with the terms of this Agreement.
21. A copy of this Agreement shall be made available to any person upon request.
22. The effective date of this Agreement is the date of the last signature on the Agreement. The term of this Agreement is three years from the effective date. The Owner and Operator shall have three years from the effective date of this agreement to complete all of the requirements set forth herein unless expressly stated otherwise.
23. This Agreement memorializes the commitments made by the Owner and Operator of the Hotel to enhance accessibility of the Hotel and the terms under which the United States has agreed to conclude this particular Compliance Review of the Hotel without further review or enforcement action. This Agreement is not intended to certify or signify, however, that the Hotel is now (or, with the actions taken pursuant to this Agreement, will be) in full compliance with the ADA, or constitute a finding by the United States of such compliance, and it may not be used in any proceeding to signify such compliance. This Agreement does not affect the Hotel's continuing responsibility and obligation to comply with all aspects of the ADA. This Agreement is not intended to reflect any legal interpretation of any provisions of the ADA by the United States, and it may not be used in any proceeding to demonstrate such legal interpretations.
24. This Agreement does not constitute an admission by the Owner or Operator of non-compliance with any provision of the ADA.
26. Failure by the United States to enforce the entire Agreement with regard to any deadline or any other provision of the Agreement, shall not be construed as a waiver of its right to enforce other deadlines or provisions of the Agreement.
27. This Agreement constitutes the entire agreement between the parties relating to the resolution. of the compliance review against the Hotel, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this Agreement, shall be enforceable.


PENN SHIPPING CO., INC., et al.
The petitioner, while employed by the respondents as a seaman on the §§ Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U.S.C. § 688, and obtained a $90,000 verdict at his jury trial. The respondents moved to set aside the verdict as excessive. Fed.Rules Civ.Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.
After some time the petitioner submitted to the District Court a proposed order stating that he accepted "under protest" the reduced verdict of $65,000, but reserving nonetheless "his right to appeal therefrom." This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.
The petitioner sought appellate review of the District Court's decision to order a conditional new trial. In so doing he asked the Court of Appeals for the Second Circuit to discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner's invitation, and dismissed the appeal. 536 F.2d 536.
(1) The Court of Appeals properly followed our precedents in holding that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed. Kennon v. Gilmer, 131 U.S. 22, 29-30, 9 S.Ct. 696, 698-699, 33 L.Ed. 110 (1889); Lewis v. Wilson, 151 U.S. 551, 554-555, 14 S.Ct. 419, 420-421, 38 L.Ed. 267 (1894); Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 52, 15 S.Ct. 751, 756, 39 L.Ed. 889 (1895); Woodworth v. Chesbrough, 244 U.S. 79, 82, 37 S.Ct. 583, 584, 61 L.Ed. 1005 (1917).
There are decisions in the Federal Courts of Appeals that depart from these unbroken precedents. Those decisions held or intimated that a plaintiff who accepts a remittitur "under protest" may challenge on appeal the correctness of the remittitur order. See, e. g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89, 94 (C.A. 1 1975); United States v. 1160.96 Acres of Land, 432 F.2d 910 (C.A. 5 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (C.A. 5 1970); Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (C.A. 5 1966); Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (C.A. 5 1963). Other decisions have suggested that when entertaining cases pursuant to its diversity jurisdiction, a federal court should look to state practice to determine whether such an appeal is permitted. See Burnett v. Coleman Co., 507 F.2d 726 (C.A. 6 1974); Manning v. Altec, Inc., 488 F.2d 127 (C.A. 6 1973); Mooney v. Henderson Portion Pack Co., 334 F.2d 7 (C.A. 6 1964).
(2, 3) The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is, however, a matter of federal law, see Hanna v. Plumer, 380 U.S. 460, 466-469, 85 S.Ct. 1136, 1141-1142, 14 L.Ed.2d 8 (1965); Byrd v. Blue Ridge Rural Electric Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), and that law has always prohibited appeals in the situation at bar. The Court of Appeals for the Second Circuit correctly adhered to the consistent rule established by this Court's decisions. In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted.
The petition for a writ of certiorari is granted, and the judgment is affirmed.
THE CHIEF JUSTICE and Mr. Justice BLACKMUN would grant the petition for certiorari but would have the case argued and given plenary consideration rather than disposed of summarily.


Plaintiff began his military career in 1983, serving in the Indiana National Guard, the Army, and the Army Reserve. He was a Captain and served in combat in Iraq. In 2007-2011 he sustained several injuries and was diagnosed with Type 2 diabetes. He was placed on reserve status while a Physical Evaluation Board evaluated his fitness for continued military service. When retired from the army on grounds of physical disability in 2014, Futrell became eligible for a monthly government pension. Had paperwork been processed, he would have also received incapacitation payments during the gap between his release from duty and his retirement; he received no government payments between December 2011 and January 2013, causing him severe financial and emotional distress. In 2013, the government paid him an amount that covered the incapacitation payments that he should have received, but did not compensate for his distress. He filed suit against under the Federal Tort Claims Act, 28 U.S.C. 2674. The Seventh Circuit affirmed dismissal of the suit as barred by a Supreme Court holding that the Act is unavailable to a member of the armed forces who “while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.” The alleged harms all relate to military benefits and were committed by military base staff. That he was on reserve status is irrelevant.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 3079 JOHN LEE FUTRELL, Plaintiff Appellant, v. UNITED STATES OF AMERICA, Defendant Appellee. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:14 cv 02089 — Tanya Walton Pratt, Judge. ____________________ ARGUED APRIL 7, 2017 — DECIDED JUNE 8, 2017 ____________________ Before POSNER, RIPPLE, and SYKES, Circuit Judges. POSNER, Circuit Judge. The plaintiff began a military ca reer in 1983, serving variously in the Indiana National Guard, the United States Army, and finally the United States Army Reserve, from which he retired, ending his military career, in 2014, by which time he had reached the rank of Captain and served in combat in Iraq. Between July 2007 and October 2011 he had sustained several injuries and, more ominously, had been diagnosed with Type 2 (adult onset) 2 No. 16 3079 diabetes. His blood glucose levels had risen so high as to sow doubt about his ability to continue performing his mili tary duties. And sure enough in October he was released from active duty and placed on reserve status while a Physi cal Evaluation Board evaluated his fitness for continued mil itary service. When finally retired from the army on grounds of physi cal disability in November 2014, Futrell became eligible to receive a monthly pension from the government. And had his medical paperwork gone through he would have re ceived in addition incapacitation payments to cover the gap between his release from duty and his retirement. But as a result of some mix up he received no money from the gov ernment between December 2011 and January 2013, a depri vation that he claims without contradiction inflicted severe financial and emotional distress on him. In the following month the government did pay him a lump sum that cov ered the incapacitation payments that he should have re ceived, but the government failed (he claims, again without contradiction) to compensate him for the distress he’d expe rienced when because of the government’s confusion or in competence he had received no salary. Having thus incurred damages as a result of the govern ment’s negligence in failing to pay him his salary for more than a year, he filed this suit against the United States under the Federal Tort Claims Act, which makes the government subject to tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. (Actually, the claim might better have been interpreted as a contract claim governed by the Tucker Act, No. 16 3079 3 28 U.S.C. § 1346(a)(2), but as neither side has briefed the is sue we’ll not address it.) Coming to the heart of the case before us, we note that the district court dismissed Futrell’s suit as barred by Feres v. United States, 340 U.S. 135 (1950), where in Justice Robert Jackson’s majority opinion, which despite its age has not been overruled, superseded, recast, or ignored, the Court ruled the Federal Tort Claims Act unavailable to a member of the armed forces who “while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces.” Id. at 138. That describes the present case. The Court further noted that the Act made “‘the law of the place where the [negligent] act or omission occurred’ govern any consequent liability,” id. at 142, quoting 28 U.S.C. § 1346(b), and since a soldier has no choice of where he’s assigned, that “the geography of an injury should select the law to be ap plied to his [a soldier’s] tort claims makes no sense. … It would hardly be a rational plan of providing for those disa bled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to laws which fluctuate in existence and value.” Id. at 143. The Court pointed out that the military had its own compensation system comparable to the common law tort system embodied in the Federal Tort Claims Act, see id. at 145, and “conclude[d] that the Government is not liable under the … Act for injuries to servicemen where the inju ries arise out of or are in the course of activity incident to service.” Id. at 146. Feres remains the law, but the plaintiff argues that his claim falls outside its scope. He points out that the negligent acts for which he seeks redress were not the injuries (includ 4 No. 16 3079 ing his contracting diabetes) that he suffered while he was in active military service, but rather the financial and emotional damages that he incurred while an Army reservist because of the Army’s delays in paying him the disability benefits to which he was entitled as a result of the injuries. Had he in curred those damages after his retirement, the Feres doctrine might well have not applied, see, e.g., United States v. Brown, 348 U.S. 110, 112 (1954), because the claim would have ac crued when he was no longer a member of the armed forces. But he was not retired until November 5, 2014, and all the delays and other harms of which he complains occurred much earlier, between December 6, 2011, and January 13, 2013; for that was the period in which he was not paid and it was his not being paid that gave rise to the damages he seeks under the Federal Tort Claims Act. Furthermore the alleged harms all relate to Futrell’s military benefits and were committed by staff working on the military base. See Jones v. United States, 112 F.3d 299, 301–02 (7th Cir. 1997). That he was on reserve status is irrelevant, because the Feres doctrine applies to reservists and not just to active military. See, e.g., Duffy v. United States, 966 F.2d 307, 312 (7th Cir. 1992); Herreman v. United States, 476 F.2d 234, 236–37 (7th Cir. 1973). What is puzzling is Futrell’s passivity during the 13 month period in which as a result of the errors or incompe tence of the military paymasters he was receiving no pay. We are not told whether he made any efforts to light a fire under the paymasters, for example by filing grievances up the chain of command or complaining to his senator or rep resentative, who probably would have been aggressive in pressing the paymasters on behalf of a constituent who had served in combat, been injured, and contracted a serious dis No. 16 3079 5 ease, all while in service. But whether the delay in his receiv ing money due to him from the government was purely the fault of the government or compounded by laxity in his pur suit of his rights is irrelevant; all that matters is that Feres renders the Federal Tort Claims Act inapplicable to a ser viceman who incurs injuries that exist only because of his military employment. The judgment of the district court is AFFIRMED.
Service member, on reserve status when alleged injury occurred, may not sue under the Federal Tort Claims Act.


You have requested advice from the Ethics Commission regarding whether moneys you raise for inaugural and transition expenses are subject to fundraising limitations under sections 1.114 and 1.200 of the San Francisco Campaign and Governmental Conduct Code ("C&GC Code”).
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter Section C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide the requestor immunity from subsequent enforcement action. See id.
Because your letter does not refer to specific actions you may take, the Commission is treating your request as a request for informal advice.
Does Section 1.200 of the Campaign and Governmental Conduct Code determine that Section 1.114 applies to limit the amount of individual contributions that I can accept to $500 in order to fund inaugural and transition expenses?
Section 1.200, set forth below, prohibits City officers from establishing any account, other than their campaign account, for the solicitation or expenditure of funds to pay expenses incurred directly in connection with carrying out the usual and necessary duties of holding office. Section 1.200 was enacted to preclude the use of “friends accounts” for officeholder expenses. See November 2, 1993 Voters Handbook on Proposition X, Elimination of Officeholder Accounts; March 13, 1995 City Attorney Advice Letter to Anita D. Mayo; June 17, 2002 Ethics Commission Advice Letter to Peter A. Bagatelos. Section 1.200(b) makes clear that all contributions to the City officer’s campaign account are subject to the $500 contribution limit of section 1.114 of the Campaign Finance Reform Ordinance.
It is not clear from your letter whether you plan to use your campaign committee to raise funds for inaugural purposes, whether you plan to establish another controlled committee to raise funds for inaugural purposes, or whether a non-profit organization will be established to handle your inauguration. Nor is it clear what you mean by “transition expenses.” Accordingly, this letter will discuss some of the concerns that are relevant to the raising and spending of funds for inaugural and transition purposes. If there are other questions you have, or if you have specific facts that you would want us to address, please do not hesitate to let us know.
1. You may use funds in your current campaign account for inaugural purposes.
Although not required to do so, you may use funds from your campaign account to pay for inaugural expenses. Under the Campaign Finance Reform Ordinance and the California Political Reform Act, funds in a campaign account “are held in trust for expenses associated with the election of the candidate to the specific office for which the candidate has stated . . . that he or she intends to seek or expenses associated with holding that office.” S.F. C&GC Code § 1.106; Cal. Gov’t Code § 89510(b). Generally, a candidate may use the funds in a campaign account for any expenditure reasonably related to a political purpose. S.F. C&GC Code § 1.106; Cal. Gov’t Code § 89512. Campaign funds may be spent in connection with holding the office to which the candidate is elected if the expenditure is reasonably related to a legislative or governmental purpose. S.F. C&GC Code § 1.106; Cal. Gov’t Code § 89512. A more stringent test applies when an expenditure of campaign funds (either for seeking office or for officeholder expenses) will confer a substantial personal benefit on the candidate. In such circumstances, the expenditure must be “directly related” to a political, legislative or governmental purpose. S.F. C&GC Code § 1.106; Cal. Gov’t Code § 89512.
The Fair Political Practices Commission has advised that an inaugural celebration is a permissible use of campaign funds. Oettinger Advice Letter, CA FPPC Adv. A-94-295. Because the Campaign Finance Reform Ordinance incorporates the provisions of the Political Reform Act relating to local elections, except as otherwise provided or inconsistent with local law (see S.F. C&GC Code § 1.106), the Commission concludes that you may use campaign funds from your current campaign account to fund inaugural activities.
2. Funds in your campaign account are subject to the $500 contribution limit.
All contributions that you receive to your campaign account are subject to the contribution limits set forth in section 1.114 of the CFRO. S.F. C&GC Code §§ 1.114 and 1.200(b).
3. Funds expended from your campaign account for inaugural purposes are not subject to the spending limit.
We note that you were a publicly financed candidate for the Board of Supervisors in the November 2, 2004 election. Thus, you were subject to the $83,000 expenditure ceiling set forth in section 1.130 of the CFRO. The spending limit remained in effect in District 5 throughout the election. While public funds may not be spent on inaugural activities, in general, inaugural expenses are not counted in determining whether you have exceeded the limit.
As you know, in the general election, any candidate for the Board of Supervisors who agrees to the expenditure ceiling may not make total qualified campaign expenditures exceeding $83,000. S.F. C&GC Code § 1.130. A “qualified campaign expenditure” does not include expenses incurred in connection with, among other things, inaugural activities or officeholder expenses. Id., § 1.104(n)(6). Because inaugural activities are excluded from the definition of “qualified campaign expenses,” they are not subject to the limits set forth in section 1.130.
* A non-profit public benefit corporation, other than your campaign account, may be established to sponsor your inauguration.
In the Bell Advice Letter (FPPC File No. A-94-376), the Fair Political Practices Commission advised that an inaugural committee that is created but not under the control of the elected officeholder is not operated for political purposes and would not be regulated under the Political Reform Act. The advice letter referred to an inaugural committee set up as a nonprofit public benefit corporation to sponsor the inauguration of Governor Wilson and related inaugural activities in 1991. After reviewing the information provided by the requestor related to the creation and operation of the committee, the FPPC noted that the facts did not establish that the committee was a controlled committee of the governor. The FPPC opined that it did not appear that payments made to the committee were for political purposes; thus, the committee was not regulated under the Political Reform Act.
Nor would a local law within the Commission's jurisdiction regulate such a committee. As explained above, the provisions of the Political Reform Act relating to local elections, except as otherwise provided or inconsistent with local law, are incorporated into the C&GC Code. See C&GC Code § 1.106. Only one section of local law is potentially inconsistent with the Bell Advice Letter, C&GC Code section 1.200.
Section 1.200 prohibits City officers from establishing any account, other than a campaign account, for the solicitation or expenditure of funds to pay expenses incurred "directly in connection with carrying out the usual and necessary duties of holding office." See C&GC Code § 1.200. All money raised for this account is subject to the campaign contribution limits imposed by the San Francisco Campaign Finance Reform Ordinance. See C&GC Code § 1.200(b) (providing, "Any and all monies or services accepted or received by an officer or on behalf of an officer, except monies or services accepted or received from or as a result of the officer's personal or business activities, unrelated to his or her office, shall be deposited, credited or otherwise reported to a campaign fund established by the officer and shall be subject to the provisions contained in Section 1.114 of the Campaign and Governmental Conduct Code").
The question presented by your inquiry is whether inaugural expenses are expenses incurred "directly in connection with carrying out the usual and necessary duties of holding office." See C&GC Code § 1.200 (emphasis added). Section 1.200 describes expenses incurred directly in connection with carrying out the usual and necessary duties of holding office as, "travel between an officer's residence and public office, meetings with constituents which are not campaign related meetings, salary payments to staff for other than campaign activities, office promotional materials, advertising, mailings, postage, and paid radio or television air time." See C&GC Code § 1.200(a). All of these expenses are incurred in activities that are directly related to performing the duties of holding a City office. Inaugural expenses are not of the same type and nature as these expenses as they can (and almost always are) incurred before holding office and do not directly relate to the duties of holding office. Because of the general rule of statutory construction that when a law enumerates examples of what is prohibited, the expression of those examples necessarily involves the exclusion of other things not expressed that are not similar in nature, the Commission concludes that section 1.200 does not apply to inaugural expenses. See Dyna-Med, Inc. v. Fair Employment & Housing Com., 43 Cal.3d 1379,1391 (1987).
The Commission's conclusion is supported by the legislative history of section 1.200. As explained above, this law was enacted to preclude the use of “friends accounts” for officeholder expenses. See November 2, 1993 Voters Handbook on Proposition X, Elimination of Officeholder Accounts; March 13, 1995 City Attorney Advice Letter to Anita D. Mayo; June 17, 2002 Ethics Commission Advice Letter to Peter A. Bagatelos. When the voters approved Proposition X, only incumbent officeholders were permitted to establish officeholder accounts. See November 2, 1993 Voters Handbook on Proposition X, Elimination of Officeholder Accounts. But in many situations, such as yours, an incumbent officeholder will not be the person assuming a City office for which inaugural activities will occur. Thus, it does not appear that the proponents of Proposition X were concerned with or otherwise sought to prohibit the use of another account for inaugural expenses.
Questions have been raised whether the language in subsection (b) of section 1.200 contradicts the Commission's conclusion. Although on its own terms, the subsection may be read to mean that any funds accepted on behalf of an officer must be deposited to the officer’s campaign fund and limited to amounts of no more than $500, the subsection cannot be read in isolation from the other subsections of section 1.200, which, as discussed above, relate to officeholder accounts. Accordingly, subsection (b) merely clarifies that funds solicited or expended for officeholder expenses must go through the campaign account. Inaugural expenses are not officeholder expenses and, therefore, need not go through the campaign account.
For these reasons, the Commission concludes that section 1.200 does not require the use of campaign funds for inaugural expenses, and is not inconsistent with the Bell Advice Letter. Accordingly, a non-profit benefit corporation, other than your campaign committee, may be used to pay for inaugural expenses.
Because your letter was vague as to the course of action that you will take with respect to your inauguration, we wanted you to be aware that the creation of a nonprofit public benefit corporation may be an option. Please remember, however, that the corporation may not be one over which you exercise control. See Bell Advice Letter (FPPC File No. A-94-376).
5. Funds used for transitional purposes must come from your campaign account.
It is not clear what you mean by “transitional expenses.” Funds from your current campaign account can be utilized for purposes that meet the test for lawful expenses. As stated above, a candidate may use the funds in a campaign account for any expenditure reasonably related to a political, legislative or governmental purpose. Expenditures made for purposes of assuring continuity of office would be reasonably related to a legislative and governmental purpose.
As explained above, section 1.200 prohibits City officers from establishing any account, other than a campaign account, for the solicitation or expenditure of funds to pay expenses incurred directly in connection with carrying out the usual and necessary duties of holding office. Expenses incurred for the purposes of assuring continuity of office are expenses that City officers incur directly in connection with carrying out the usual and necessary duties of holding office. The gathering of information and performance of acts to ensure the continuity of a particular City office are duties that public officials are expected to perform when assuming a new office. These expenses relate directly to the officials duties of holding office, and are therefore subject to section 1.200. Accordingly, the Commission concludes that section 1.200 requires you to place any funds you raise for the purposes of paying for transitional expenses into your campaign account.
Because such contributions must be placed in your campaign account, they would be subject to the contributions limits imposed by section 1.114(a) discussed above. Likewise, for the same reasons discussed above related to qualified campaign expenditures, transitional expenses would not be subject to the spending limit in section 1.130 of the CFRO.
I hope you find this information to be helpful. If you have questions, please do not hesitate to let me know.
 SEC. 1.200. PROHIBITION ON MULTIPLE CAMPAIGN ACCOUNTS.
An officer of the City and County of San Francisco, or any person or committee on behalf of an officer of the City and County of San Francisco, is hereby prohibited from establishing any account, other than a campaign fund, for the solicitation and expenditure of funds. Nothing in this section shall prohibit an officer from spending personal funds on official or related business activities.
(a) An account established by an officer or on behalf of an officer of the City and County of San Francisco is defined as any account used to pay expenses incurred directly in connection with carrying out the usual and necessary duties of holding office, including but not limited to, travel between an officer's residence and public office, meetings with constituents which are not campaign related meetings, salary payments to staff for other than campaign activities, office promotional materials, advertising, mailings, postage, and paid radio or television airtime.
(b) Any and all monies or services accepted or received by an officer or on behalf of an officer, except monies or services accepted or received from or as a result of the officer's personal or business activities, unrelated to his or her office, shall be deposited, credited or otherwise reported to a campaign fund established by the officer and shall be subject to the provisions contained in Section 1.114 of the Campaign and Governmental Conduct Code.
(a) LIMITS ON CONTRIBUTIONS TO CANDIDATES—PRIMARY AND GENERAL ELECTIONS.
(1) Per Candidate Limit. No person other than a candidate shall make, and no candidate campaign treasurer shall solicit or accept, any contribution which will cause the total amount contributed by such person to such candidate in the general election to exceed $500.
(2) Overall Limit. No person shall make any contribution which will cause the total amount contributed by such person to all candidates in the general election to exceed $500 multiplied by the number of City elective offices to be voted on at the general election.
Any unexpended public funds must be delivered to the Ethics Commission no later than 30 days after the Ethics Commission completes its audit of the candidate. S.F. C&GC Code § 1.148(a) and (d).
 Although you are not legally a City officer until you are sworn into office in January, you will incur transitional expenses of the type described above both before and after you are sworn into office. As such, the Commission concludes that section 1.200 applies to your solicitation and expenditure of all funds to pay for transitional expenses.


PrawfsBlawg: Are Supreme Court Justices Bound By Supreme Court Precedent?
Are Supreme Court Justices Bound By Supreme Court Precedent?
While reading Justice Stevens' dissent in Kansas v. Marsh, which is largely focused on explaining why his joining Justice Blackmun's dissent in Walton v. Arizona does not commit him to agreement with the majority in Marsh, I was again reminded of a question that has bothered me ever since I read Justice Scalia's dissent in Dickerson v. U.S.: Are supreme court justices bound by supreme court precedent? The apparent answer is no. They can rule any way they like. In Dickerson, the majority ruled that 18 U.S.C. 3501, which purported to overrule Miranda, was unconstitutional. In dissent, Scalia explained why he disagreed and concluded his dissent by announcing that until §3501 is repealed, "[I] will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary."
Does this strike anyone as a problem? It does me.
Most everyone else is required to apply the law as the Supreme Court articulates it. Circuit court judges, for example, are required to apply supreme court precedents even where they vehemently disagree with them. Executive branch officials must implement those precedents. Unlike majorities of the Supreme Court, individual justices have no power to change the law, so why should individual justices be any different?
Scalia certainly was not the first to renounce an intention to follow the Court's precedents. Justices Brennan and Marshall consistently refused to uphold death sentences long after the Court ruled in Gregg v. Georgia that the death penalty was constitutional. (Although it strikes me that there is a difference of kind between Scalia's disavowal in Dickerson and Brennan/Marshall's anti-death penalty stance).
Does it matter whether Justices feel bound to follow precedents with which they disagree? After all, they can always state reasons for their rulings in subsequent cases, as did Brennan and Marshall, independent of their disobedience. It seems to me, though, that when individual Justices refuse to acknowledge the legality of the Court's governing precedents, and apply those precedents in good faith, it negatively affects the growth and development of the law. Thus, in a future Miranda case, Justice Scalia might cast the deciding vote based on 3501 , creating a new precedent that might not be the best fit with existing precedent. This seems a great recipe for creating incoherent doctrine. If each Justice is his or her own sovereign entity, then we don't have a single jurisprudence, but instead nine "jurisprudentia."
An intuitive understanding of this problem is probably why, most of the time, judges try to reconcile their present votes with past precedent with which they disagreed, as does Stevens in Marsh. What we get most of the time, I suppose, is a kind of individualized stare decisis, which is perhaps as good as we can hope for, since there is no way to prevent Scalia/Brennan/Marshall acts of judicial disobedience.
As a layman, I've always wondered about the relationship between Plessy and Brown,since they didn't engage the same principles.
In Plessy, the court ruled that a state government could order a private enterprise (railroad) to segregate, over its objections and at cost to it.
In Brown, the court ruled that a state government could not segregate its own resources (a school).
It seems to me that one could find Plessy wrong on grounds that have nothing to do with segregation itself.
What if the Plessy case had been about the segregation of Roman Catholic Parish Schools in Louisiana ? Could the state force them to segregate?
Clearly granting citizenship to foreign temp workers, students, tourists, and illegal immigrants and diplomats is "stare decisis" (we didn't previously give citizenship to children of foreigners who didn't legally emigrate, in fact we booted foreigners) on the other hand I don't think the children of foreign UN workers are excluded either (in practice, not law) and the whole concept of birthright citizenship granted to everyone is reliant upon Constitutionally mandated protection from foreign invasion and secure borders which our government no longer practices.
America is no longer a republican form of government whereby it's citizens choose their future-ie self determination, now we're subjected to the whims & wishes of foreigners and federal officials who allow them.
Look at the cost of 70 million Hispanics, we wouldn't be in Iraq on an oil quest without them, our oil consumption would be 25% less than current levels and dropping every year with technology increases.
With competent immigration screening we wouldn't have had 9/11 and 5,000 less murders by illegal immigrants, or 15,000 fewer drunk driving deaths caused by illegals.
Stare Decisis costs big time, not only in higher taxes and more murders it could be America's doom. We could easily get obliterated by hostile foreigner's votes-citizenship through adverse posession, it only takes 2/3 the population to trash the constitution forever.
Where I live over 2/3 of the population are Mexican Socialists.
Civil war is coming without a change to the birthright citizenship practice, they saw the last one (Civil war) coming 60 years out, I saw this one 20 years ago.
i find it odd to suggest that scalia (or any justice) is "bound" by a thew majority's justice in any particular case.
if that were true, wouldn't that defeat the purpose of dissents entirely? after all, if scalia is "bound" by the will of 5 justices, doesn't he have no grounds whatsoever to dissent? or, would one argue that the decision doesn't becoming binding until it is actually released (and thus a contemporaneous "dissent" isn't necessarily a refusal to 'follow precedent')? that seems like a silly distinction to me, however-- if one really believes that scalia must be 'bound' by the opinion of 5 justices, i don't see how it makes sense to permit him to dissent at the time of the original decision, but then require that he subscribe to the majority in all subsequent decisions. or, is a dissent merely to be some type of consolation prize, whose arguments must be forever disregarded?
having only glanced at scalia's dissent, i think he is completely correct to continue to apply 3501 until its repeal (if he sincerely believes that it is not unconstitutional). lower courts obviously have a different role, but surely a supreme court justice should not be bound by "precedent," especially one as ill-conceived as miranda.
"He is proclaiming that though an Act of Congress was struck down by Congress, he would decide cases in the future as if that law was still on the books."
Yes. My question obviously is not whether the Supreme Court as an institution has the authority to overrule past precedent. Of course it does, and thank heavens for that. The question is whether an individual Supreme Court justice can be "bound" by precedent where his/her views are not, and will not, be shared by a majority. Thanks Jennifer for clarifying some of these issues. I think what Scalia did in Dickerson is above and beyond the usual judicial disobience. Think about it. He is proclaiming that though an Act of Congress was struck down by Congress, he would decide cases in the future as if that law was still on the books. That seems to me an even more pointed case than the Brennan/Marshall insistence that the death penalty is unconstitutional, an issue that is, after all, germane in every death penalty case.
There is a difference between joining with a majority to overrule precedent--a decision that should involve considering the role of stare decisis--and persistently refusing to follow precedent even when overruling is off the table for the moment. Just at a practical level, failure to acquiesce is likely to exacerbate problems with splintered decisions in which, for example, the deciding vote is cast on the basis of disagreement with a precedent that nonetheless remains good law.
Brennan and Marshall's refusal to acquiesce in the death penalty decisions was, in my view, a form of civil disobedience--a legitimate technique, but one which must be used sparingly to retain its effectiveness. Refusing to acquiesce on a wide array of points, some of them rather technical, just makes one look petty, at least from the perspective of a legal establishment that wants the Court to produce reasonably coherent rules to be applied by lower courts and respected by the public.
The most famous acts of Supreme Court judicial disregard of precedent were the consistent Brandeis/Holmes dissents from First Amendment cases, taking a stand on free speech that we virtually unanimously take for granted today, or at least did until McConnell v. FEC.
Not bound, I thought, but respectful of. I have a vague recollection that Justice Harlan, in his concurrence in Gideon v. Wainwright (which "failed" to follow Betts v. Brady), said something like he agreed Betts should be overruled, but wanted to accord it a kinder burial than had the opinion of the Court.
Isn't it obvious that Supreme Court Justices aren't bound by the Court's precedents? Think Brown v. Board, Lawrence v. Texas, West Coast Hotel v. Parish, etc. Do you think that Brown v. Board "negatively affects the growth and development of the law"? Was that really judicial disobedience?