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It was recently in the news that the Eight Circuit Court of Appeals has decided that only the federal government can sue under Section 2 of the Voting Rights Act.

However, this past June, the Supreme Court ruled on a case under Section 2 of the Voting Rights Act, brought by someone other than the federal government, in Allen v. Milligan. Which, under the Eight Circuit ruling, would seem to not be allowed.

Is the court system entertaining the possibility that, since June, it has been discovered that actually private parties can't have standing in these types of cases? If this case goes to the Supreme Court, would the justices there be able to say that actually they erred this past June in ruling on a case brought by private parties, and actually only the federal government can sue under Section 2? Or would they be bound by their own precedent? Or were they somehow not able to consider the question of standing in Allen?

If the Supreme Court can change its mind on the timescale of months, and they rule that private parties have no standing, why would lower courts abide by that precedent any more than the Eight Circuit seems to be doing here with respect to Allen? Couldn't people just keep on filing cases, and lower courts keep on agreeing to hear them, on the theory that another few months have passed and perhaps standing has been discovered yet again?

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  • In Allen, the supreme court didn't consider the question of whether parties other than the federal government can sue under the voting rights act, so that decision does not create precedent on that question. Precedent does not arise by implication.
    – phoog
    Nov 21, 2023 at 7:23

4 Answers 4

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How long do courts have to follow precedents?

Forever, until expressly or implicitly overruled by a higher court.

I would disagree with DaleM about the 8th Circuit case referenced being a question of first impression. The issue would be one of subject-matter jurisdiction which courts are required to raise sua sponte if no party raises the issue. The fact that many private causes of action were considered on the merits implies that the courts had subject-matter jurisdiction over such claims. Therefore, the 8th Circuit did, improperly, enter a ruling contrary to controlling precedent.

But, in the same vein, U.S. District Courts in the 8th Circuit, are bound by its new precedent, unless and until it is overturned. If a party wants to preserve their case while this 8th Circuit precedent affecting their case is being reviewed, the proper course of action would be to request a stay of their cases pending SCOTUS review of that case.

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  • "Forever, until expressly or implicitly overruled by a higher court." Can't it be overruled by subsequent legislation rather than by a higher court? Nov 25, 2023 at 5:32
  • @MichaelHardy When new legislation is passed you say that the precedent has been superseded by new legislation rather than calling that "overruled", as a new law doesn't imply that the old case was wrongly decided. Precedents of the old case to the extent not changed by legislation (e.g. applying the precedent by analogy to another area of the law not changed by legislation) remain good law. For example, if the case clarifies how a child support calculation works, that part of the ruling is still good law even if the percentages in the statute change giving a new result under those facts.
    – ohwilleke
    Nov 25, 2023 at 15:50
  • Good point. But in some cases legislation can be retroactive. Nov 25, 2023 at 19:40
  • @MichaelHardy Even if it is retroactive, we don't call it "overruling" a case, even if that is the practical effect of the legislation.
    – ohwilleke
    Nov 26, 2023 at 17:29
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    @MichaelHardy Indefinitely is probably more accurate than "forever" but lots of people misunderstand the word to mean an imprecise period, rather than until something comes along to change it. The real point is that precedents don't have expiration dates. In areas where the law has changed a lot, you should be suspicious of old precedents, but in areas like real estate and equity, precedents from the 1800s are often cited as good law in modern legal briefs.
    – ohwilleke
    Nov 27, 2023 at 0:22
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There is no "best before date" on a precedent. That is: the age of a precedent, considered on its own, presents no constraint on when that precedent might be overturned. However, factors that are relevant tend to only appear through the passage of time (e.g. unworkability, or societal, legal, or technological change), so older precedent is more likely to be overturned.

A minority of the Supreme Court of Canada recently addressed this in R. v. Kirkpatrick, 2022 SCC 33 (internal citations removed):

[254] The age of a precedent is not relevant to whether the Court may overturn it. There is no magic “best before” date after which it becomes open season for the Court to revisit precedent, nor is there any arbitrary period before which it cannot be reconsidered.

[255] The Court has been inconsistent on the relevance of the “age” of a precedent. Sometimes, the Court has suggested that it should not overturn a precedent because it is recent. Other times, the Court has suggested that it should be more difficult to overturn longstanding precedents because they have engendered reliance. This inconsistency suggests that the precedent’s age is not what is impelling the decision of whether it ought to be overturned.

[256] That said, unworkability and foundational erosion require time to materialize. In this sense, newer precedents are less likely to be overturned.

As for why lower courts would follow precedent that might be overturned? Because until it is overturned, it is controlling. See Canada (Attorney General) v. Bedford, 2013 SCC 72, para. 44:

a lower court is not entitled to ignore binding precedent

The lower court can of course distinguish based on a new legal issue raised, or new evidence that changes the facts in a novel case, but that is not the same as failing to abide precedent.

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There was no precedent involved

It appears that no previous case has challenged the standing of private organisations to bring such a case. Now they have, and a court has decided the question. There is no precedent here and the Eighth Circuit was entitled to make up its own mind.

Previous obiter comments by SCOTUS have said as much:

Justice Neil Gorsuch wrote in a concurring opinion that the court was explicitly not ruling on whether a private right exists.

“Our cases have assumed — without deciding — that the Voting Rights Act of 1965 furnishes” that right, he wrote. “Lower courts have treated this as an open question.” Justice Clarence Thomas concurred with Gorsuch’s opinion at the time.

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1791: sort of...

Precedent does not expire, but Binding Authority can only go back as far as the founding of the US Federal Court system.

Stare decisis (to stand by things decided), is the policy of the Court System that defines how precedent is to be applied. Under stare decisis, there are actually 2 types: Binding Authority and Persuasive Authority. Binding Authority at the Federal level can be cited back to the first US federal court case West v. Barnes held in 1791. Under this authority, precedent can still be argued based on cases over 300 years old as long as newer laws and rulings have not invalidated them.

That said, arguments of Persuasive Authority can often be made citing other legal systems where the applicable US laws and binding authority is found to have no way of dealing with the situation. While a court is not bound to the authority of other court systems, it is not uncommon for a court to take into consideration the rulings of lower courts, other states, or even other countries. So, it is acceptable (in certain contexts) to cite the Persuasive Authority of cases that predate the US court system. So, if you have a situation where the only case in all of history that resembles a given situation was argued in Ancient Athens, you could technically argue its Persuasive Authority as setting a precedent.

All this said, even Binding Authority is not absolutely binding. Horizontal stare decisis: where a court is bound by its own precedent, has the authority to overturn previous decisions if prior decisions are found to be "unworkable or are badly reasoned". This practice is seen in cases like Dobbs v. Jackson Women's Health Organization or Brown v. Board of Education. Vertical stare decisis: where a lower court is bound by a higher court's authority is more absolute.

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  • 2
    no, some pre-US cases still act as binding precedent. As a result, in the US, 1607 is the oldest precedent from the Americas that has to be followed, and quite some older English cases too.
    – Trish
    Nov 22, 2023 at 17:51
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    As an example: The Rule against Perpetuities was established in 1682 by The Duke of Norfolk's Case - making that case precedential by establishing the rule that still holds true.
    – Trish
    Nov 22, 2023 at 18:12
  • @Trish This is why I said "sort of..." Things like the Duke of Norfolk's case can be cited in modern law as a persuasive precedent. However, because it has influenced American Legal cases since then, aspects of it are now indirectly binding precedents. For example, you could now cite Wedel v. American Elec. Power Service Corp as a binding precedent which was influenced in a non-binding way by the Duke of Norfolk's case, but any case made outside of your jurisdiction is automatically non-binding under US law.
    – Nosajimiki
    Nov 22, 2023 at 20:40
  • This reads like a ChatCPT answer.
    – ohwilleke
    Nov 23, 2023 at 0:01
  • @ohwilleke not a ChatBot answer, this is just how I write. I
    – Nosajimiki
    Dec 1, 2023 at 16:27

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