Excerpted From: Charquia Wright, Circuit Circus: Defying Scotus and Disenfranchising Black Voters , 83 Ohio State Law Journal 601 (2022) (208 Footnotes) (Full Document)


CharquiaWrightFederal Courts' jurisdictional practices are often the site of racially disparate biases. This procedural discrimination ordinarily goes unnoticed, obscured behind the web of statutory and constitutional laws that determine who may sue in federal court, and consequently establish who is visible in the eyes of federal law. These laws do not exist in a vacuum. Other prudential rules interact with them and affect their implementation. Yet, some of these rules remain understudied to the detriment of the minoritized populations most likely to fall victim to their misapplication.

One such prudential rule is the law of the circuit. The law of the circuit--the horizontal stare decisis policy within a circuit--demands that a circuit panel follow prior in-circuit precedent absent a temporally intervening statute, en banc decision, or Supreme Court decision. This rule interfaces with implied private right of action jurisprudence in ways that disadvantage the groups that are least likely to be granted an implied private right of action and afforded a fair trial.

Take for example a group of voters in Northeastern Ohio subjected to unnecessarily stringent voting requirements. They were denied relief under the Civil Rights Act of 1957 (CRA) in a case called Northeastern Ohio Coalition for the Homeless (NEOCH) v. Husted. In this case, the Sixth Circuit held that the Attorney General is the only litigant capable of bringing suit under this provision of the CRA. The circuit panel arrived at this conclusion, not by using the Supreme Court's test for determining whether an implied private right of action exists, but by citing to a circuit court decision, McKay v. Thompson, that completely ignores the Supreme Court's implied private right of action test and adopts its own test to determine whether a private plaintiff can sue.

The NEOCH panel's gaffe cannot simply be attributed to incompetence or apathy. Nor is it a legal anomaly. Far from aberrational, the actions of the NEOCH panel were deemed mandated by the of the law of the circuit, which states that:

A panel of this court may not overturn binding precedent because a published prior panel decision “remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”

The law of the circuit allows circuit courts to flout Supreme Court precedent in two ways. First, courts and commentators read “intervene” to mean temporally intervene, that is to say only Supreme Court or en banc rulings made after an otherwise binding in-circuit decision may overrule an in-circuit court decision. Second, even when SCOTUS cases have temporally intervened, circuit judges still occasionally defer to conflicting in-circuit precedent, as if it merited super-deference. This is due, in no small, part to the law of the circuit's effect on the legal conscience.

For example, in the 2016 NEOCH case, the Sixth Circuit failed to apply the Supreme Court's implied private right of action test for determining whether private enforcement is available under the CRA, even though SCOTUS reaffirmed this test in 2002, two years after the errant circuit court decision, McKay, that the NEOCH court held was binding. Even the presence of subsequent inconsistent Supreme Court precedent mandating a completely different methodology than that outlined by the circuit panel was insufficient to overcome the NEOCH panel's allegiance to in-circuit precedent.

Because the Supreme Court denied certiorari, and the Sixth Circuit denied plaintiffs' request for an en banc hearing, the plaintiffs in NEOCH were unable to advance their CRA claims. Supreme Court statutory interpretation precedent was suspended as to the NEOCH litigants before their claim had ever ripened due to the law of the circuit.

The Supreme Court has long held that lower courts are not free to overrule Supreme Court precedent, and that both the holding and methodology of SCOTUS precedent bind lower federal courts. In practice, however, circuit panels sometimes disregard Supreme Court precedent in observance of the law of the circuit as was done by the panel in NEOCH.

Unlike the Supreme Court which may overrule its own precedents in certain circumstances, and the federal district court, which may overrule its own precedents, the law of the circuit policy dictates that federal circuit courts may not overrule an in-circuit decision that has been wrongly decided, simply on the basis that it is wrong.

Complicating matters further, the scale of this problem is nearly impossible to determine because circuit courts do not ordinarily announce their insubordination, which makes searching for it on a search engine unfeasible. Only jurists intimately familiar with the relevant case law will see these mistakes, leaving the lay populations affected totally oblivious.

Supporters justify the law of the circuit rule, in part, asserting that the first panel to handle an issue necessarily does so exhaustively, considering all binding precedent. The NEOCH case study shows that this presumption is not always warranted. Yet, the law of the circuit makes no provisions for when a circuit court of first review fails to consider relevant binding Supreme Court precedent.

Reliance interests, some might argue, make reliance on erroneous circuit precedent proper given the federal circuit court's unique role as the de facto court of last resort for most litigants. As the argument goes, making horizontal precedent--precedent created by the court reviewing the case-- binding ensures predictability within the circuit. While this may be true concerning transactional or property issues, where civil rights are concerned, fundamental fairness predominates over all other considerations. Although circuit panels frequently disobey this precept by disingenuously distinguishing from otherwise on-point precedent, in some instances, it is not possible to distinguish a case from erroneous precedent, particularly where categorical determinations are involved, as is true in the statutory interpretation of implied private rights of action.

Taken seriously, the law of the circuit doctrine is very rigid and can be read to overrule Supreme Court precedent. Circuit courts have on occasion pledged undying allegiance to erroneous circuit court precedent that flatly rejects decades-old Supreme Court doctrine. Because defiance of this magnitude can be particularly dangerous in the civil rights context, it is important to problematize the entrenchment of the law of the circuit in instances where no viable reading of Supreme Court precedent supports the circuit court's holding or where substantive fairness dictates that nullification is in order.

In that same vein, it is important that the wording of the law of circuit be modified to reflect the supremacy of Supreme Court doctrine. When prior circuit precedent and Supreme Court doctrine conflict, circuit judges should not accord super-deference to the precedent in their circuit, especially when making crucial decisions affecting fundamental rights. The Supreme Court and circuit courts have the responsibility to revise this practice.

Existing corrective mechanisms, such as Supreme Court and en banc review, proved ineffectual for the NEOCH plaintiffs. Should this gaffe repeat itself in the voting rights context or elsewhere, it will not only work a lasting injustice upon plaintiffs, but also upon democratic legitimacy and democracy itself.

Despite the absurd and sometimes grave consequences of the rigid application of the law of the circuit doctrine to the civil rights context, there has been little scholarly discussion on the issue. None of the law of the circuit scholarship centers the invisibility of civil rights plaintiffs at the intersection of civil rights jurisprudence and federal courts jurisprudence. This Article seeks to fill that gap by providing a comprehensive analysis of the law of the circuit's effect on implied private right action determinations under the Civil Rights Act of 1957. By locating the law of the circuit debate within the implied private right of action literature, this Article questions the wisdom of the law of the circuit and argues that the law of the circuit must be modified to except scenarios where lower court defiance of Supreme Court precedent will result.

Part II of this Article highlights the facial and interpretive contradictions between the law of the circuit and the Supreme Court's vertical stare decisis doctrine. Part III illustrates how this contradiction has materialized in vote denial challenges brought under the Civil Rights Act of 1957. Part IV suggests ways that the law of the circuit can be brought into alignment with binding Supreme Court precedent.

[. . .]

When a circuit court decides that a statute only allows public litigants, like the Attorney General, to bring suit, the law of the circuit requires that every private plaintiff thereafter suing under that same statute be denied an implied private right of action unless legislation, or a later-occurring en banc or Supreme Court decision requires that the precedent be overturned. No matter how incorrect the decision, all future circuit panels will be bound by it. Even if the prior circuit panel's decision contradicts long-standing Supreme Court precedent, future circuit panels have no authority to overrule the prior panel under the prudential law of the circuit doctrine.

This rigidly applied prudential rule must be changed immediately in order to avoid grave injustice. In the interim, judges should not consider themselves bound by the law of the circuit in instances where circuit precedent contradicts Supreme Court precedent, irrespective of whether that precedent predates the binding circuit decision. After all, the law of the circuit is merely a policy, not a precedential mandate.

The law of the circuit's overly technical application can have serious consequences in statutory interpretation cases dealing with the most vulnerable plaintiffs. As explained above, the Sixth Circuit in NEOCH failed to apply the Supreme Court's implied private right of action test to the CRA when deciding whether private plaintiffs may sue under the CRA, because a prior Sixth Circuit panel failed to do so in McKay. Citing the law of the circuit, the later panel in NEOCH held that it was bound by McKay, even though the McKay panel failed to apply Supreme Court's binding implied private right of action test. Instead the McKay panel refused to allow private plaintiffs to sue under the CRA, reasoning that the statute explicitly granted the Attorney General the authority to sue, which in the court's view precluded all other possible plaintiffs from bringing suit by negative inference. When faced with the issue again in NEOCH, the circuit court referenced, yet declined to follow, Supreme Court decisions that implied a private right of action in statutes containing an explicit grant of authority for the Attorney General to sue, reasoning that the prudential law of the circuit required them to ignore Supreme Court precedent in favor of circuit precedent. This case study illustrates the unyielding nature of the prudential law of the circuit doctrine in the statutory interpretation context.

Some variations of this policy expressly forbid circuit courts from following Supreme Court precedent that conflicts with circuit court precedent if the Supreme Court decision predates the conflicting circuit court decision. Even those articulations of the law of the circuit that do not expressly endorse abrogating Supreme Court precedent that predates the binding in-circuit precedent are ubiquitously interpreted in conformity with the variations that do.

The rationale is that the prior circuit panel had the opportunity to thoroughly consider, construe, and apply then-existing Supreme Court precedent. In order to avoid unnecessarily duplicating these efforts, later circuit panels are instructed to defer to the earlier circuit panel ruling. Since this rule does not make exceptions for when the earlier precedent-establishing panel patently ignores then-existing Supreme Court precedent, the absurd scenario results where a later circuit panel is bound by circuit precedent that conflicts with Supreme Court precedent. Although an en banc or Supreme Court ruling can overturn controlling circuit precedent, circuit courts rarely go en banc and the Supreme Court seldom grants certiorari, leaving litigants at the mercy of circuit precedent decided long before their case ever ripened.

Although merely prudential, circuit courts have applied this rule rigidly, to the point of abrogating Supreme Court precedent. Circuit courts dutifully observe this policy, especially in scenarios where distinguishing is nearly impossible.

The potential precedent-suspending effects of this doctrine are evermore inflexible in the implied private right of action context. When applied to implied private right of action inquiries, the law of the circuit allows lower federal courts to preclude large groups from seeking judicial recourse, effectively locating entire populations outside of the aegis of the law. Given that implied private right of action decisions are categorical (i.e., their preclusive or inclusive effect extends to broad categories of people like “all private plaintiffs”) future circuit panels will not be able to depart from this precedent by simply distinguishing the case. The later panel will have to entrench the erroneous precedent, unless an en banc panel, Supreme Court decision, or legislation obviates said precedent.

This affront to binding Supreme Court precedent illuminates a deeper controversy within the legal system, that is, the tendency of courts to relegate plaintiffs vindicating civil rights to a space of exception. This socially dead state is called the “state of exception,” which is in essence a “permanent spatial arrangement that remains continually outside the normal state of law.” The space of exception is an outgrowth of a nation's necropolitical power to earmark portions of its own citizenry as socially dead.

It is imperative that both lethal and seemingly non-lethal legal decisions be situated along the spectrum of necropolitical instantiations of power, for out of these ostensibly mundane decisions arise the attitudes and biases that ultimately rationalize extrajudicial killings, mass incarceration, and genocide.

Once a litigant's denial of justice is understood in terms of necropolitics, it becomes apparent that litigants subject to the rigidly applied law of the circuit are literally placed outside of the realm of the law into the space of exception, where the operation of the law is permanently suspended, all for the sake of prudence. This has the effect of making certain classes of civil rights plaintiffs and their claims invisible before the eyes of the law.

In order to prevent this outcome, the language of the law of the circuit should be modified to include a manifest injustice or vertical stare decisis exception.

Assistant Professor of Law, Florida State University College of Law.