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Ohio State Law Journal

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Law students are uniformly taught thatfederal circuit courts cannot and will not overrule Supreme Court precedent under any circumstance. This is not true. They can, with little fear of corrective mechanisms like en banc oversight, Supreme Court review, or congressional override. And in certain circumstances, they are bound to do so by the law of the circuit. Under the prudential law of the circuit doctrine in-circuit precedent binds circuit courts, even in scenarios where conflicting long-standing Supreme Court precedent exists. Circuits can only depart from erroneous circuit precedent ifa later-decided SCOTUS or en banc decision obviates the circuit precedent. This means that if in the year 2000, a circuit court refuses to obey an on-point Supreme Court precedent decided in 1997, then the circuit precedent, not the Supreme Court precedent, binds all later circuit panels in that circuit until the Supreme Court, or an en banc panel takes up the issue again or until Congress overrides the circuit precedent. However, these fail-safe apparatuses offer little deterrence value. Estimates of an individual panel's risk of SCOTUS and en banc review are as low as .002% and .008% respectively. In at least one case involving black vote denial plaintiffs in the Sixth Circuit, later-decided SCOTUS precedent was insufficient to override the precedential weight of circuit precedent despite irreconcilably conflicting with earlier circuit precedent. Jurists believe the law of the circuit rule to be necessary to prevent intracircuits plits, and to encourage efficiency and robust discussion of an issue between circuits prior to SCOTUS review (otherwise known as percolation). Though intracircuit unity, judicial efficiency, and percolation are valuable prudential concerns, the current interpretation and in some cases the express language of the law of the circuit policy violates established Supreme Court precedent, which forbids lower federal courts from overruling the Supreme Court under any circumstance. Because this concept has become so deeply engrained in the legal conscience, scholars rarely engage its problematic aspects, allowing it to hide in plain sight. Particularly worrisome is the application of the law of the circuit to statutory interpretation in the vote denial context: ruling that a certain class ofplaintiffs lacks an implied private right of action to sue for vote denial under the Civil Rights Act bars all future Civil Rights Act plaintiffs from judicial recourse under that Act. The law of the circuit compounds this danger because circuit panels are prudentially bound by circuit precedent, even if that precedent conflicts with binding Supreme Court precedent, creating preventable problems that carry grave consequences. In light of the Supreme Court's most recent ruling in Bmovich v. DNC severely limiting the application of the vote denial provisions of § 2 of the Voting Rights Act, the Civil Rights Act of1957 is emerging as one of the last bulwarks against vote denial. However, should the Sixth Circuit's SCOTUS defiance continue in vigor, we may continue to see further the demise of the remnants of the omnibus civil rights era legislation undergirding our enfeebled democracy.