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Do Judges Really Have To Follow Precedent?Not unless they mind being reversed.

By Brian PalmerPosted Thursday, July 16, 2009, at 6:14 PM ET

Judge Sonia Sotomayor Much of Judge Sonia Sotomayor's hearings for confirmation to the Supreme Court have focused on the role of legal precedent. She repeatedly used the P-word to justify her more controversial rulings, in the face of senators who excoriated her for failing to follow it. If Sotomayor really ignored precedent while serving as a federal judge, could she have gotten in trouble?

Not unless Congress had moved to impeach her. The federal system values judicial independence very highly and takes few steps to deter a judge from challenging existing law. Obviously, a judge who paid no mind to prior case law would see her decisions regularly reversed on appeal. But she can be removed from the bench only through the impeachment process, and lesser judicial-misconduct proceedings are largely toothless. No federal judge has ever been disciplined in either manner for failure to apply precedent.

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Judges have been impeached for failure to preside due to insanity (Charles Pickering in 1804), treason (West Hughes Humphreys in 1862), and sexual misconduct (Samuel Kent, who resigned from office on June 24). A few impeachments were based on inappropriate legal decisions, but these cases involved charges of political bias (Samuel Chase in 1805) or corruption (Alcee Hastings in 1989). Federal judges have been impeached 14 times in U.S. history, but never for refusing to apply settled law.

Short of impeachment, a federal judge's peers can preside over judicial-misconduct proceedings against her. These are sometimes used to discipline a judge for personal or financial improprieties, although punishment is infrequent and relatively mild. From 2005-07, only 36 of 2,108 complaints filed against federal judges resulted in any punishment. The disciplinary actions included censure, removal from a case or a class of cases, and paid leave. While proceedings cannot be brought against a judge based on the merits of her rulings, disciplinary committees have vaguely suggested that a deliberate, flagrant, and persistent disregard of binding law may be punishable. But no such proceedings have ever occurred.

As a practical matter, judges who disagree with an ostensibly binding precedent usually reframe their case so it matches up with a more appealing line of past cases—that way they can rule how they want. By this route, judges like Harry Pregerson, who famously announced at his 1979 confirmation hearing that he would follow his conscience if it conflicted with the law, simply avoid unfriendly precedents altogether.

The states, many of which popularly elect judges precisely because their founders did not value judicial independence, often take a different approach. They tend to value the efficiency and integrity of the judicial system over the intellectual freedom of individual judges. Many state judicial-disciplinary committees have the power to remove maverick judges. As in the federal court system, most of the disciplinary proceedings relate to financial and personal misconduct, or egregious abuses of judicial authority. However, in 1999 the California Commission on Judicial Performance heard a case against Justice J. Anthony Kline, who openly refused to apply binding precedent. He argued that the controlling state Supreme Court case was wrongly decided. Kline escaped punishment by later claiming that his refusal was more an argument for an exception to precedent than willful defiance.

Got a question about today's news? Ask the Explainer.

Explainer thanks Stephen B. Burbank of the University of Pennsylvania Law School and Arthur D. Hellman of the University of Pittsburgh School of Law.

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Brian Palmer is a freelance writer living in New York City. He can be reached at .

Photograph of Sonia Sotomayor by Mark Wilson/Getty Images.

COMMENTS

The real sanction that keeps lower court judges following precedent is professional pride. The courts do their work in writing. Everyone within the legal community knows it when a trial or intermediate appellate judge regularly gets smacked down by a higher court. Some judges have thicker skins than others, but most don't want to appear unlearned and unprofessional.

In a centralized state court system like New Jersey's there's an additional sanction. All lower court judges in the NJ system are assigned to their positions by the Chief Justice, who is the administrative head of the court system. Those who make a show of defying the higher courts find themselves transferred to trying landlord-tenant disputes and auto accidents in Boondock County. Those who play by the rules find themselves trying major cases or sitting on the intermediate appellate court.

Precedent is often ambiguous -- Karl Llewellyn, the founder of the Legal Realist school of jurisprudence, pointed out that few appeals are taken without a serious argument on both sides of the case. A lower court judge often has wiggle room to chose among conflicting lines of authority, or to distinguish a higher court precedent because key facts of the case before her are different. A judge who agrees with a higher court precedent will extend it; one who disagrees will use whatever scope there is to limit it.

On the Supreme Court, the only power of precedent is self-restraint. As Justice Jackson wrote, "We are not final because we are infallible; we are infallible because we are final." The Supreme Court has often made new law, and it has from time to time overruled or limited its prior decisions. A judge's obedience to Supreme Court decisions in a lower court does not necessarily tell you what he or she would do given the freedom of action the Supreme Court enjoys.

-- jack_cerf
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