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Judge Ho’s Concurrence in Homeland Insurance Co.

The Fifth Circuit made a decision last week Williams v. Homeland Ins. Co. of New York. This case was a long-running, complicated dispute with the insurance company. The panel was divided and found the district court had no diversity jurisdiction.

Judge Ho wrote the concurrence. He identified in the case a conflict between textual precedent. In such a clash, Ho wrote, courts “should maximize the former—and minimize the latter.” Ho described how judges of lower courts should strike a balance between textualism, and stare decisis. Circuit judges must not accept the extension or modification of existing precedents unless they are supported in the text. The principle is equally applicable to any questions regarding the Constitution’s original meaning. When developing originalism at lower court, judges must include this string of citation.

“[J]The Constitution is upheld by udges who swear to it, in accordance with the precedent-based judicial system. This should mean we will decide all cases faithfully to the Constitution’s text and original meaning, as well as to binding precedent to the greatest extent possible. Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021. (Ho. J. dissented from denial to rehearing. “So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: ‘Our duty is to apply the Constitution—not extend precedent.'” Id. At 417 NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020). (Cleaned up. [FN1]

[FN1] You can also see, e.g., Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020). (en banc) Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)); McCloud v. McCloud, 994 F.3d 512, 543 (6th Cir. 2021) (en banc) (Bush, J., concurring) (same); Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020). (Bumatay J. dissented from the denial of hearing en banc) United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019). (en banc) [Jordan J., dissidenting] (when it is precedent with a “shaky initialist foundation. . . there is always the option of declining to broaden it—of refusing to extend it one inch beyond its previous contours”); People v. MathewsViviano J., dissenting. 93 N.W.2d 636 and 645 (Mich. 2020). (judges shouldn’t extend precedent “unless it is required by Constitution’s original understanding”). See also: Josh Blackman Lower Courts: Stare Decisis and Originalism13, NYU J.L. & LIBERTY 44, 51 (2019) (“[A]If the Constitution allows it, the Supreme Court should allow the extension of a Supreme Court precedence.”).  

I’ve covered several cases like these. Taylor-Seidenbach (Ho), Rettig (Ho), Iron Workers (Bumatay), Edmo(Bumatay), Preterm–Cleveland(Bush). Additionally, I thank you for citing my article, Originalism & Stare Decisis in Lower Courts.

A larger observation is that the string of cited judges should make up any future Supreme Court nominees. Committed originalists should be on the court if we intend to have originalists in the future.

The circuit’s precedences in this instance were not consistent with the statute. Judge Ho explained to Circuit precedent that judges must limit non-textualist opinions and refuse to go further.

Our circuit precedent is our responsibility as panel members. This means that we must read precedent carefully. “The lower court judges are not allowed to read a case too narrowly in an effort to overrule the ruling.” Int’l Ass’n974 F.3d at 11.16 (Bumatay (J.), dissident from denialofrehearingenbanc) (quotations are omitted). You can also see Blackman 13 NYU J.L. & LIBERTY 51 This temptation should be resisted by judges.”).

This is why it’s not a good idea to continue the precedent:

However, our precedent did not apply the improper joinder doctrine in instances where defendants were improperly joined because of substantive law. Refer to Flagg819 F.3d at 13 (“The test for improper jointder is whether the defendant has proven that there’s no chance of the plaintiff being sued against an instate defendant”) (quoting Smallwood385 F.3d, at 573. Our precedents did not involve a defendant improperly joined in a matter de procedure. This is what happened here.

It is not my understanding that it should be necessary to expand our wrong precedents in order to make this case work. It isn’t a situation in which logic requires that we expand an atextual body precedent to maintain rationality and consistency in law. Cf. Cf.543 U.S. 1 (11 n.8 2004) Courts are required to interpret statutes “consistently”. Clark v. Martinez, 543 U.S. 371, 380 (2005) (same).

Judge Ho agrees with these limited grounds:

Every case should be decided by following the applicable legal text, to the extent that it is permissible by faithfully reading binding precedent. Today, that is exactly what majority does. Therefore, I am in agreement.

Judge Jones disagreed:

According to majority, the district court was not competent because the lawsuit involved a non-diverse plaintiff. The majority believes that the district court will lose jurisdiction because Homeland’s case is not being heard in Louisiana state courts. I find the arguments of the majority to be too strong. I agree with the court of district. 

To correct an error in precedent, the Fifth Circuit could consider this case en banc. It is more likely because Judge Ho has concurred. And ultimately, these originalist/textualist concurrences flag for the Supreme Court where precedent has deviated from text. The trickle effect of lower court originalists is something I find increasingly valuable.