Auguring, morphing, and the rule of orderliness

Thompson v. Dallas City Attorney’s Office appears to present the first use, in the history of the federal judiciary, of both the words “augurs” and “morphed” in a circuit-court opinion. It also carefully reviews the “vexing” question of when an earlier Fifth Circuit opinion should not be followed, despite the “rule of orderliness,” because that opinion was inconsistent with Supreme Court precedent when written. The Court found that Henson v. Columbus Bank & Trust Co., 651 F.2d 320 (5th Cir. 1981) was such a case, noting:

• prior Supreme Court precedent on the relevant res judicata question, which Henson did not address or even acknowledge;
• further Supreme Court precedent, issued soon after Henson, reaffirming the earlier opinion;
• consistent Fifth Circuit case law since Henson that did not apply it; and
• a paucity of citations to Henson.

In sum: “Orderliness, rightly understood, compels deference, not defiance. And disregarding on-point precedent in favor of an aberrational decision flouting that precedent is the antithesis of orderlinesss.” No. 17-10952 (Jan. 11, 2019).