Volume 111

Disfavored Supreme Court Precedent in the Lower Federal Courts

There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Almost all of this debate has concerned whether the Court should adhere to its own decisions, a matter of “horizontal” stare decisis. But potentially even more significant is the “vertical” effect of Supreme Court precedent on the lower courts, which handle almost all of the federal judicial business. If the Supreme Court expressly overturns a precedent, the lower courts will of course stop following that precedent. But what happens when the Court simply suggests in some way that the precedent is in disfavor? This Article considers that question from both empirical and normative perspectives, drawing on case studies of three doctrines that lost favor on the Court: the Lemon test for Establishment Clause claims, Bivens actions, and Chevron deference. Based on this analysis, we develop what we term a “decisional authority model,” pursuant to which the lower courts should consider some disfavoring signals but not others when determining the weight to be given to a Supreme Court precedent. We provide a taxonomy of potential signals and offer guidance to lower courts on how to respond to these signals. We also highlight the trade-offs between disfavoring and overturning precedent.

Introduction

Almost everyone agrees that the lower federal courts must follow Supreme Court decisions. But what happens when the Supreme Court itself chips away at or begins ignoring a precedent without overruling it? Although the past few terms have led scholars to focus on outright overruling, that is not the only way in which the Court can undermine or cast doubt upon its past decisions. In areas ranging from civil rights to administrative law, the Court has used various methods to put its prior rulings on seemingly thin ice.

One illustration is the Lemon test for Establishment Clause claims, which required a consideration of the purpose and effect of government action and whether the government had become too entangled with religion.1 1.See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).Show More In the decades after the Court established that test in 1971, the doctrine was roundly criticized by numerous Justices and ignored in a number of decisions, yet never expressly overruled.2 2.See infra Section III.A.Show More Then, in 2022, Justice Gorsuch’s opinion for the Court in Kennedy v. Bremerton School District declared that the Lemon test had “long ago” been “abandoned”—without explaining precisely when or how such abandonment had occurred.3 3.142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting).Show More The implication was that the Justices had “abandoned” Lemon by either repeatedly denouncing or failing to apply the precedent (or both).

There are many other examples. One is the Court’s decision (also from 1971) in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allowed private plaintiffs to bring damages claims against federal officials for constitutional violations.4 4.See 403 U.S. 388, 395–97 (1971).Show More Although the Court has never overruled Bivens, it has rejected every Bivens claim it has considered since 1980 and, in recent years, has emphasized that the remedy is “disfavored.”5 5.See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B.Show More

Another illustration is the long-standing Chevron doctrine concerning judicial deference to administrative agencies.6 6.See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984).Show More Over the past decade, despite deciding a number of cases involving agency interpretations of statutes, the Court often declined even to cite Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., let alone rely on it, and some Justices openly called for the Court to overturn it.7 7.See infra Section III.C.Show More When it finally did so in June 2024, the Court described Chevron as a “crumbling precedent[]” and colorfully observed that “all that remains of Chevron is a decaying husk with bold pretensions.”8 8.Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024).Show More

In these examples, the Supreme Court has “disfavored” its own precedent—that is, the Court has suggested that the decision should be given less weight than what would have seemed appropriate when the decision was first issued. Through this definition of disfavoring precedent, we mean to encompass what other scholars have variously called “stealth overruling,” “narrowing,” and “obstructing” precedent, as well as confining a precedent to its particular factual setting.9 9.See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent).Show More Most examinations of this phenomenon have focused on whether, and under what circumstances, the Supreme Court may legitimately disfavor its own precedents, which is an important question of horizontal stare decisis. But our focus is different. In this Article, we consider empirical and normative questions surrounding vertical stare decisis—in particular, how the lower courts can and should respond to disfavoring, and how the Supreme Court can and should guide the lower courts in their responses.

When the Supreme Court disfavors a precedent, what happens in the lower federal courts, which do almost all of the federal judicial business? Do they treat a disfavored precedent as fully operative? As diminished but still in effect? As abandoned? How should they treat such precedents? These questions have become even more pressing as statements by concurring and dissenting Justices seem increasingly to be directed at the lower courts.10 10.For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases).Show More

This Article aims to tackle these (and related) questions. Our analysis has empirical as well as theoretical and normative components. With some notable exceptions, work by legal scholars on the relationship between the Supreme Court and the lower federal courts has tended to focus on conceptual issues about how the judicial system should operate.11 11.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev. 829, 837–39 (2022).Show More This is valuable work, but any analysis of whether the system of precedent is working the way that it should—that is, whether there is an actual problem that needs correcting—requires an understanding of how it is in fact operating, which requires some empirical study.

Accordingly, we gathered and analyzed data on federal courts of appeals cases involving the three legal doctrines mentioned above: the Lemon test for Establishment Clause claims; Bivens actions; and Chevron deference. In each area, the Court issued a major decision, then appeared to back away from that precedent in subsequent rulings.12 12.See infra Part III (describing these doctrinal changes).Show More To get a sense of how the courts of appeals have responded over time to the Supreme Court’s apparent disavowal of its precedent, we coded and analyzed a random sample of federal court of appeals decisions in these three areas.13 13.We describe in Part III our coding methodology for each doctrinal area.Show More We also qualitatively reviewed the decisions in order to get a more in-depth understanding of what the courts were doing.

This empirical information helps us better frame the theoretical and normative questions surrounding the judicial hierarchy. On the theoretical side, the existing perspectives seem to fall into one of two camps. Some scholars have claimed that a lower federal court should make a “prediction” about how the current Supreme Court might rule in a case and act accordingly.14 14.See infra Section II.B.Show More Other commentary disputes that view and suggests that lower federal courts should treat a past Supreme Court precedent as “authoritative,”15 15.We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6.Show More without speculating about what the current Court might do.16 16.See infra Section II.B.Show More That is, this commentary argues for an authority model rather than a prediction model.

As we will show, the existing models do not capture the complexity of proper lower court adherence to Supreme Court precedent. With rare exceptions, lower federal courts do not seek to predict how the current Supreme Court might rule in a case—an effort that would both undermine the status of existing decisions as sources of law and be fraught with the potential for error. That is, lower courts generally follow an authority model.

But the authority model has thus far been ill-defined. Some declarations from the Supreme Court suggest that lower courts should treat an earlier decision as binding, despite later decisions that indicate that it is in disfavor.17 17.See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))).Show More On this view, lower court judges should focus only on the original meaning of the decision and ignore subsequent developments. But such an approach neither accords with lower court practice nor makes sense as a normative matter. Instead, under any viable authority model, lower courts should focus on a broader array of Supreme Court materials. Yet neither the Court nor academic commentary has identified what properly falls (and does not fall) into that broader array.

This Article offers a different understanding of vertical precedent, which we call a “decisional authority” model. Our model is based on two sets of normative goals. First, the model aims to promote the rule of law values that are typically associated with vertical stare decisis, including predictability, consistency, and judicial legitimacy. Second, as under any authority model, our model is designed to ensure that lower courts treat Supreme Court decisions as “the law,” even if there are reasons to believe that this law might change.

To serve these goals, it is important to provide more analytical clarity on vertical precedent. So we offer a taxonomy of five potential signals that might indicate that a precedent is in disfavor: (1) disparaging statements in subsequent opinions; (2) decisions that distinguish or narrow an earlier decision; (3) failure to cite a precedent; (4) decisions in related areas that seem inconsistent with the earlier precedent; and (5) methodological shifts that seem to undermine the foundations of a precedent. We argue that, under a proper authority model, not every disfavoring signal from the Justices is of equal value.

Which of these signals count? Under our decisional authority model, lower federal courts should rely only on the first and second categories, and only to the extent that the Supreme Court has criticized, distinguished, or narrowed its precedent in binding decisions. By contrast, lower courts should not rely at all on the third, fourth, or fifth categories—the failure to cite a precedent, changes in other areas of law, or methodological shifts. Supreme Court silence, as well as changes in methodology or other areas of law, provide uncertain and unreliable information about the legal status of a past precedent. Nor should lower courts rely on the first category, to the extent that the disparaging statements come only from plurality, concurring, or dissenting opinions. A subset of Justices, we contend, should not be able to undermine a past decision of the Supreme Court.

Under our approach, lower courts consider different factors than the Court itself in deciding how to treat a Supreme Court precedent. Because the Court has the authority to overturn or modify its own precedents, the Court can consider, for example, whether a past decision is erroneous, but that is not a consideration open to the lower federal courts. Relatedly, the Court may take into account a variety of signals about the status of a past precedent, including its own failure to cite a decision, as well as disparaging comments in separate opinions, methodological shifts, or changes in other areas of its doctrine. These options are not, we argue, available to the lower courts.

Our decisional authority model is more nuanced than prior accounts and offers needed guidance to the lower federal courts. As noted, our empirical research suggests that lower courts generally do seek to treat Supreme Court decisions as authoritative, rather than engaging in mere prediction. But we find that there is some confusion in the lower courts as to, for example, how to treat plurality or separate opinions that attack an earlier decision, or what to do with Supreme Court silence or methodological shifts. Our normative analysis provides guidance on which types of Supreme Court signals should matter in a scheme of vertical precedent.

This project has implications not only for the proper role of the lower federal courts but also for that of the Supreme Court. Many scholars have asserted that the Court has a leading role in overseeing how the lower courts interpret and apply federal law.18 18.For examples, see infra notes 28–32 and accompanying text.Show More To the extent that one accepts that view, how can the Court best perform that role? One might assume that, if the Supreme Court aims to undermine a precedent, it should expressly overrule that precedent, rather than signal that the precedent is disfavored. Indeed, some Justices have argued as much.19 19.See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines).Show More We argue, however, that the picture is more complex. The Supreme Court may properly signal that a precedent is disfavored without overruling it, but only when it acts through binding decisions. Neither judicial silence nor disparaging statements in separate opinions should be enough to signal that a precedent has been “abandoned.”

These questions are crucially important today. Although we focus on three issue areas, similar questions arise with respect to the effect of precedent concerning many other questions of federal law that are currently the subject of considerable debate, such as qualified immunity,20 20.See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”).Show More presidential removal of executive officials,21 21.At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025).Show More congressional delegations of authority to the executive branch,22 22.Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”).Show More and Article III standing.23 23.That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022).Show More Accordingly, our theoretical analysis should help guide both the Supreme Court and the lower federal judiciary in approaching disfavored precedent across a host of issue areas. We also hope to spur additional empirical study of the relationship between the Supreme Court and the lower federal courts.

Our analysis proceeds as follows. Part I describes the theories and values that underlie a scheme of vertical precedent. Part II explains the concept of “disfavored precedent” and describes our taxonomy of five approaches that the Justices may use to signal that a precedent is disfavored. Part III provides our case studies and empirical findings. Finally, Part IV builds on the theoretical framing and empirical work to argue that, under a decisional authority model, there are limits to the manner in which the Supreme Court may properly undermine its own handiwork.

  1.  See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
  2.  See infra Section III.A. ↑
  3.  142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting). ↑
  4.  See 403 U.S. 388, 395–97 (1971). ↑
  5.  See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B. ↑
  6.  See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984). ↑
  7.  See infra Section III.C. ↑
  8.  Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024). ↑
  9.  See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent). ↑
  10.  For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases). ↑
  11.  See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.

    817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev

    .

    829, 837–39 (2022). ↑

  12.  See infra Part III (describing these doctrinal changes). ↑
  13.  We describe in Part III our coding methodology for each doctrinal area. ↑
  14.  See infra Section II.B. ↑
  15.  We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6. ↑
  16.  See infra Section II.B. ↑
  17.  See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))). ↑
  18.  For examples, see infra notes 28–32 and accompanying text. ↑
  19.  See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines). ↑
  20.  See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”). ↑
  21.  At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025). ↑
  22.  Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”). ↑

  23.  That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.

    1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022). ↑

Void Judgments and “Reasonable Time”

Introduction

Rule 60(b) of the Federal Rules of Civil Procedure authorizes federal district courts, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons.1 1.Fed. R. Civ. P. 60(b).Show More Rule 60(b)(4) specifically allows parties to seek such relief where “the judgment is void.”2 2.Fed. R. Civ. P. 60(b)(4).Show More Rule 60(c)(1) establishes a time limit for Rule 60(b) motions, demanding that certain requests for relief—including requests based on a party’s inadvertence or mistake, newly discovered evidence, or allegations of fraud—must be brought “no more than a year after the entry of the judgment” from which relief is sought.3 3.Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3).Show More All other motions under the Rule must be made “within a reasonable time.”4 4.Fed. R. Civ. P. 60(c)(1).Show More

Notwithstanding the Rule’s seemingly straightforward language, multiple federal courts of appeals have concluded that Rule 60(c)(1)’s “reasonable time” requirement does not apply where a party seeks relief from the consequences of an assertedly void judgment.5 5.See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit).Show More The refusal to apply the reasonable time limitation to motions under Rule 60(b)(4) is premised on the idea that “no passage of time can transmute a nullity into a binding judgment, and hence there is no time limit for such a motion.”6 6.United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”).Show More This view also finds support among leading academic commentators on federal jurisdiction and procedure.7 7.11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane].Show More

But not everyone is convinced. Some courts, including the U.S. Court of Appeals for the Sixth Circuit, have adopted a literal interpretation of the Rule that would require all motions under Rule 60(b)—including those authorized by Rule 60(b)(4)—to be made within a “reasonable time.”8 8.In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012).Show More The U.S. Supreme Court recently granted certiorari in Coney Island Auto Parts Unlimited, Inc. v. Burton,9 9.Coney Island, 145 S. Ct. 2775.Show More which presents the question of “[w]hether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.”10 10.Petition for a Writ of Certiorari, supra note 5, at i.Show More This case seems to confront the Court with a direct conflict between the literal text of Rule 60 and deep intuitions regarding the relationship between jurisdiction and judgment validity.

This Essay suggests a way in which the Court could answer that question that makes sense of both the Rule’s text and background history, and the traditional conception that void judgments are nullities carrying no legal effect. This interpretation draws upon the traditional common law distinction between judgments that were void on the face of the record and judgments for which the rendering court’s lack of jurisdiction could only be established through extrinsic evidence. Though judgments of the former type were generally regarded as absolute nullities that could be challenged at any time, challenges that hinged on extrinsic evidence often faced additional obstacles, including a potential laches defense if the moving party unreasonably delayed in seeking relief. Interpreting Rule 60(c)(1) in light of this distinction would make sense of the text’s extension of the “reasonable time” requirement to motions for relief from void judgments without imputing to the enactors an intention to depart from deeply rooted background principles regarding the relationship between adjudicative jurisdiction and the validity and finality of legal judgments. This interpretation also comports with the overarching policy goals of Rule 60(b) and of the Federal Rules more broadly.

  1.  Fed. R. Civ. P. 60(b). ↑
  2.  Fed. R. Civ. P. 60(b)(4). ↑
  3.  Fed. R. Civ. P. 60(c)(1); Fed. R. Civ. P. 60(b)(1)–(3). ↑
  4.  Fed. R. Civ. P. 60(c)(1). ↑
  5.  See Petition for a Writ of Certiorari at 8–11, Coney Island Auto Parts Unlimited, Inc. v. Burton, 145 S. Ct. 2775 (2025) (No. 24-808) (mem.) (observing that, “[a]part from the Sixth Circuit, every Court of Appeals to have addressed the issue has concluded that no . . . time limitation exists” for a motion under Rule 60(b)(4) and citing decisions from the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits as well as the D.C. Circuit). ↑
  6.  United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (en banc); see also, e.g., United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) (“Even if appellants’ motion was not made within the prescribed period, if the judgment was void, relief must be granted nevertheless.”); Austin v. Smith, 312 F.2d 337, 343 (D.C. Cir. 1962) (“Under [Rule 60(b)(4)] . . . , the only question for the court is whether the judgment is void; if it is, relief from it should be granted. . . . [T]he Rule places no time limit on an attack upon a void judgment . . . .”). ↑
  7.  11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2862, at 431 (3d ed. 2012) (“[T]here is no time limit on an attack on a judgment as void.”) [hereinafter Wright, Miller & Kane]. ↑
  8.  In re Vista-Pro Auto., LLC, 109 F.4th 438, 444 (6th Cir. 2024), cert. granted sub nom. Coney Island, 145 S. Ct. 2775; see also, e.g., Lee v. Marvel Enters., Inc., 765 F. Supp. 2d 440, 449 (S.D.N.Y. 2011) (“[A] claim for Rule 60(b)(4) relief must have been brought within a ‘reasonable time.’”), aff’d, 471 F. App’x 14 (2d Cir. 2012). ↑
  9.  Coney Island, 145 S. Ct. 2775. ↑
  10.  Petition for a Writ of Certiorari, supra note 5, at i. ↑

The President Told Me To: The Public Authority Defense in the Trump Era

After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. Court of Appeals for the District of Columbia Circuit’s Watergate-era case United States v. Barker. The defense involves a claim that an individual was authorized to engage in otherwise unlawful activity by a government official. But the D.C. Circuit was split on whether the government official in question must have the authority to make such an authorization, or if the defendant’s belief in the official’s apparent authority would suffice. The D.C. Circuit never clarified the standard, and now that President Trump has pardoned the January 6 defendants, the court is once again unable to do so. Nevertheless, the January 6 case is a prime test to determine the proper standard, and this is the prime time to do so, given the possibility of future prosecutions of current Trump Administration associates who may want to claim reliance on President Trump’s direction.

This Note makes four contributions: First, it describes the public authority defense case law, beginning with the actual-versus-apparent authority debate in Barker and its progeny. Second, this Note argues that the actual authority standard is correct based on existing law and policy. Third, it applies the actual and apparent authority standards to the January 6 case, illustrating how only the actual authority standard provides a workable rule. This conclusion makes clear that the public authority defense must fail for the January 6 defendants, but not for the reason courts thought. Fourth, this Note elucidates additional implications for the public authority defense and for those President Trump directs to take unlawful action during his second term. Ultimately, individuals cannot rely on a president’s orders to escape criminal culpability.

Introduction

President Trump’s approach to his second administration is best captured in his own tweet: “He who saves his Country does not violate any Law.”1 1.Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V].Show More Newly emboldened in his second term by broad criminal immunity,2 2.See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).Show More President Trump has made clear with his words that he believes he is above the law and will act accordingly. It is less clear, however, what happens to those the President instructs to undertake unlawful action at his behest.3 3.The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982).Show More Perhaps these individuals have an affirmative defense: that the President told them to act unlawfully, and by virtue of his position as President of the United States, he legally authorized their otherwise criminal conduct. This defense is not merely hypothetical; it was raised by several of the individuals charged for their involvement with the January 6 attack on the U.S. Capitol. Although the January 6 rioters have all received pardons,4 4.Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025).Show More revisiting their cases is a vital exercise to understand how such a defense works in anticipation of similar prosecutions that may arise from conduct engaged in during President Trump’s second term.

Throughout the various January 6 legal proceedings, several defendants pointed to President Trump’s incendiary language to argue that he ordered them to “stop the steal.”5 5.See infra notes 92–93.Show More During the presidential debate back in September 2020, in response to a question about whether he would condemn the far-right militia group the Proud Boys, President Trump told the group to “stand back and stand by.”6 6.Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV].Show More In the months leading up to January 6, he repeatedly espoused the claim that the presidential election was stolen from him.7 7.H.R. Rep. No. 117-663, at 195, 213–16 (2022).Show More On the evening before the attack, President Trump again emphasized the election had been stolen and that his supporters had to do something to stop President-elect Joe Biden from taking office.8 8.Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6].Show More Finally, in a speech at the rally on the National Mall on January 6, 2021, just before the attack on the Capitol began, he made the following remarks:

Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. . . . And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules. . . . And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. . . . So we’re going to . . . walk down Pennsylvania Avenue. . . . And we’re going to the Capitol, and we’re going to try and give . . . them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.9 9.Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters.Show More

Defendants used this language to argue that President Trump legally authorized their break-in of the Capitol Building. For example, defendant and Proud Boys member William Chrestman argued the following in a motion requesting release on bail:

Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did. The American head of state directed a specific action; the Due Process Clause says that those who obeyed him have a viable defense against criminal liability.10 10.Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman].Show More

Similarly, defendant Alexander Sheppard argued the following in his response to the government’s motion in limine:

Never before in our nation’s history has a sitting United States President, alongside other prominent elected officials, invited, encouraged, and condoned the public to engage in criminal conduct. . . . [T]he federal government now opposes Mr. Sheppard’s right to present a viable defense.11 11.Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard].Show More

This is the public authority defense. As described by the Department of Justice, such a defense is available where a government official authorized the defendant to engage in otherwise unlawful conduct.12 12.U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34].Show More This defense has its origins in a Watergate-era case, United States v. Barker.13 13.546 F.2d 940 (D.C. Cir. 1976) (per curiam).Show More There, the U.S. Court of Appeals for the District of Columbia Circuit held that the trial court should have allowed the defendants to raise the defense that they broke into a psychiatrist’s office to steal information about the person who leaked the Pentagon Papers only because a White House official told them to.14 14.Id. at 943, 954 (Wilkey, J.).Show More But the judges disagreed on how the defense should work. Judge Robert Merhige wrote that the defense required that the defendant receive authorization from someone who had the actual authority to make such an authorization.15 15.Id. at 955 (Merhige, J.).Show More Judge Malcolm Wilkey wrote separately that the defendant’s belief in the official’s apparent authority would suffice.16 16.Id. at 949 (Wilkey, J.).Show More That split has never been resolved.

The U.S. District Court for the District of Columbia decided that the public authority defense was unavailable in the January 6 cases.17 17.United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021).Show More While that conclusion is correct, the court’s reasoning is unpersuasive. The court did not clarify the correct standard for the defense and failed to wrestle with the factual comparisons to Barker.18 18.See infra Section I.C.Show More To foreshadow, the court concluded that the public authority defense fails because President Trump never gave an affirmative authorization; however, Barker and its progeny do not impose such a strict requirement.19 19.Infra Section I.C.Show More Engaging with the public authority defense case law reveals that the defense fails for the January 6 defendants not because President Trump never authorized their conduct, but because the President does not have the power to do so.

This Note is the first to give an in-depth treatment to the public authority defense case law, apply it to the January 6 defendants, and use this application to argue for the correct standard for the defense.20 20.The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so.Show More Part I explores the public authority defense case law, beginning with the diverging opinions in United States v. Barker that created the debate between actual and apparent authority. Part I then looks to other courts of appeals to draw out more precise contours of the defense. Part I concludes by examining how the January 6 defendants used this defense and why it was rejected.

Part II argues that the actual authority standard is the proper test for the public authority defense based on the weight of circuit-level authority, comparisons to the related doctrines of entrapment by estoppel and superior orders in military law, and public policy concerns. Part III then uses the January 6 defendants as a test case to further establish that only the actual authority standard produces a workable rule and legitimate outcome. This conclusion makes clear that the D.C. District Court had the right answer that the public authority defense should fail for the January 6 defendants, but for the wrong reason.

Part IV addresses implications of the January 6 case. First, the case draws out an additional limit on the defense beyond the actual authority standard, such that it should not work where there is a broad, public authorization. Second, the case suggests that the public authority defense is limited to specific factual circumstances and that Barker itself might be an exception rather than the rule. In conclusion, it is clear that in the event of future prosecutions of Trump Administration officials and associates, a defense that President Trump authorized their conduct is likely to fail.

  1.  Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V]. ↑
  2.  See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). ↑
  3.  The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982). ↑
  4.  Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025). ↑
  5.  See infra notes 92–93. ↑
  6.  Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV]. ↑
  7.  H.R. Rep. No. 117-663, at 195, 213–16 (2022). ↑
  8.  Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6]. ↑
  9.  Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters. ↑
  10.  Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman]. ↑
  11.  Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard]. ↑
  12.  U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34]. ↑
  13.  546 F.2d 940 (D.C. Cir. 1976) (per curiam). ↑
  14.  Id. at 943, 954 (Wilkey, J.). ↑
  15.  Id. at 955 (Merhige, J.). ↑
  16.  Id. at 949 (Wilkey, J.). ↑
  17.  United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021). ↑
  18.  See infra Section I.C. ↑
  19.  Infra Section I.C. ↑

  20.  The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so. ↑

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