Judges Debate What to Do When Precedent, Originalism Collide

Federal appellate judges debated what to do when they encounter Supreme Court precedent they believe isn’t in line with an originalist view of the US Constitution, but are still bound to follow.

Speaking at a panel Thursday at the conservative Federalist Society’s convention in Washington, Judge James Ho of the US Court of Appeals for the Fifth Circuit described the question as “one of these eternal debates I have, that judges have, with law clerks.”

“The argument will be, ‘Judge you didn’t swear an oath to uphold Supreme Court precedent, you swore an oath to uphold the Constitution,’ so does ...