Judicial Supremacy: Not So Bad

Properly understood, that is

|The Volokh Conspiracy |

At the Law & Liberty site today, I have a review of Louis Fisher's new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here's an excerpt:

But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that "judicial rulings must be obeyed as long as they are intra rather than ultra vires"—that is, as long as they are plausibly "within a court's authority to render"—and "not unreasonable as judged from the perspective of the President and a majority of the American people." If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.

Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court's disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court's decisions on constitutional questions, Lincoln conceded, "should control, not only the particular cases decided, but the general policy of the country." Nevertheless, "[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this." . . .

Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. "No matter what evidence is presented," he writes, "some scholars and courts will continue to rely on and promote the doctrine of judicial finality." But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court's decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.

You can read the whole review here.

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  1. Most people realize the Supreme Court’s rulings are not final, because Congress and the President can always pass new or revised legislation, which the Court gets another whack at; and Congress and the states can always amend the Constitution.

    All seems fine to me. Each step is harder than the previous. About the only change I would make in general is make it explicit that part of the judiciary’s job is voiding unconstitutional laws, regulations, executive orders, etc; and providing some kind of punishment for those who write and voted for them.

    1. No, SCOTUS is inexorably pushing us to a Second Civil War.

      1. No.

        If anything is pushing the country to Civil War 2.0, it is expanding government. The more it intrudes into daily life with its monopolistic coercive “solutions”, the more people have no choice but to wrangle with government, to redirect its mandatory single-choice “solutions” onto others before others redirect it onto them. The Supreme Court is too small a part of that to be insignificant.

        1. “expanding government. The more it intrudes into daily life with its monopolistic coercive “solutions””

          You’ve just described the federal court system. Nothing gets decided until multiple judges get to pontificate about it.

          1. The courts are only a symptom of the general increase in government meddling. It’s a natural outcome: if government has twice as many laws and bureaucrats, there will be twice as many cases. Or maybe it goes by the square, I don’t know. But the courts are not driving this. Accuse them of permitting it by not stroking down enough laws, fine. But driving no.

            1. They’re sure not putting up a fight, when they’re happy to endorse each new power grab by the other branches, instead of enforcing the Constitution as written.

              I’ll grant that the judiciary is downstream of the elected branches, being nominated and confirmed by them. But that doesn’t deprive them of agency, and guilt over their part in expanding the federal government beyond constitutional bounds.

    1. He’s full of it. To pin any blame on the Supreme Court just shows that you are happy with government having the power to control everybody’s lives, but unhappy with the choices that were made for you by the people you would rather be making the choices for.

  2. Simply put, significant social change (like gay marriage) should come via the elected branches, rather than through the unexpected branches. Otherwise, you have a counter-majoritarian institution, deliberately isolated from public opinion with limited checks on them from other branches, deciding things that we ought to collectively as a society.

    It doesn’t help that courts are supposed to protect rights, but with everything now in the language of rights, reformists groups who run to the courts because they can’t get the time of day from the legislature or the executive, how say “it’s my right to do or have XYZ.” Even what is a “right” needs to be collectively agreed upon.

    1. Since you are opposed to counter-majoritarian institutions, I take it you’ll join me in opposing the electoral college and electing senators proportionate to population rather than two from each state? Or is it only when federal judges are counter-majoritarian that it’s a problem?

      1. Well, that’s a rather poor comparison. SCOTUS and the EC are different indeed, have different purposes. SCOTUS, for example, wasn’t deliberately created, for example, to resolve the problems of direct mob democracy, and wasn’t a compromise on how big and small states could agree to form a union. Trade-offs all considered.

        However, if we are going to get rid of it, let’s do it via a constitutional amendment. You know, via majoritarian institutional processes.

        1. No comparison is identical, but in both cases you have checks and balances on majoritarian impulses. The voters can’t be trusted to elect the president directly, and the legislature can’t be trusted to not violate people’s constitutional rights. So, because majorities can’t be trusted, we have checks on them. The comparison is therefore valid on the specific point to which it is addressed.

          I would love to do things via majoritarian processes, but in case you’ve forgotten, the current system thwarts pretty much what the majority wants to do, via anti-democratic institutions and super majority requirements. Give us a system that is truly democratic, my side will do just fine.

          1. I think you don’t understand teleology. The EC was designed to be counter-majoritarian. The courts weren’t, but ended up that way because a small minority uses them to thwart the majority.

            The EC is a system to try to prevent mob rule, the same as only 1/3 of the Senate being up for election at any one time. Courts are a system for dispute resolution that have morphed into a counter-majoritarian institution thwarting the will of the majority of a plethora of cultural issues, left and right.

            Look at it this way. It’s possible to like one flavor or ice cream, but not all flavors of ice cream. I like strawberry, but not chocolate. Furthermore, one counter-majoritarian institution can be fine, the other not so much. Why is it difficult for you to grasp this concept.

            1. My point, though, is that you cannot say, on the one hand, to do things through the democratic process, and then on the other hand rig the democratic process so that the majority is shut out of it. That’s just hypocrisy. And by the way, why should people take seriously someone who insults them by comparing them to a mob?

              1. I would hardly say the EC, a product of small state/big state compromise, that also drew upon the knowledge that the constitutional convention had of Athenian mobs killing Socrates and the end of the Roman Republic is, an effort to quote “rig the democratic process”. When certain legal topics come up here, you seem so competent in your knowledge, it makes me question your sanity when you write such patently absurd things.

                If enough voters don’t like it, then use said democratic process via an amendment to change it. But bloody well at least frame the issue properly as a series of trade-offs; making for a system of majority rule but not direct democracy.

                1. OK, I know what the framers *said* about the EC, which is pretty much what you just said. I don’t believe them. The reason for my skepticism is that if you read the federalist papers, you find comment about how we can’t have democracy because once the people find out they can vote themselves largesse out of the public treasury, it will be the end of the republic. Same reason only property owners could vote. Yes, there were political tradeoffs, but the real opposition to democracy was that the people might elect progressives.

                  And yes, there have been real, genuine mobs in the past. But a genuinely democratic election is not a mob. Not even if the losers disagree with the outcome.

                  And “enough” voters are unlikely to change it via amendment, because it would mean small states giving up power, which they will not do voluntarily. Which goes back to my earlier point about stop being disingenuous about the democratic process actually being a solution to this particular problem.

  3. Of course law professors would naturally like a system of judicial supremacy. Like road engineers think the solution to every traffic problem is to widen lanes and built more roads.

    1. Well, under any system, somebody has to have the last word. When there is a conflict as to what the law is, somebody has to resolve it. So what would you propose as the alternative?

        1. Tyranny of the majority. Of what use are human rights when the definition changes with each poll?

          1. I didn’t argue for direct democracy. Don’t read into it to much.

            What you don’t seem to realize, is that right now already our culture (composed of voters) has what we agree are these things called “human rights.” Such things don’t exist in other countries. “Inalienable” is nothing but fine rhetoric.

        2. So if the executive and the legislative branches disagree about what the law means, we have an election about it? Seriously? That’s what you’re proposing?

          1. Is that any different from what happens now, generally speaking?

            1. Well yes, yes it is.

              There may be an issue that can’t wait until the next scheduled election. There may be an election that produces divided results, and the two branches are still at loggerheads on that issue. Most voters are not single issue voters, so unless this particular issue is a doozy, election results may not reflect voter sentiment on that specific issue. The bottom line is that somebody is going to need to decisively have the last word, sometimes fairly quickly.

              And by the way, what if it’s not two branches. What if I think a law is unconstitutional and won’t comply with it. Who is empowered, as between me and the state, to determine what is, and is not, constitutional?

              1. There “may” be an issue. And lets just presume that compromise is impossible so it has to be a 3rd party with authority over the other two? Please.

                What you don’t get, is that judicial politics, with the lawsuits, and interest groups, and appointments, etc. etc. is already electoral politics with the window dressing that it’s impartial justice.

                Your last question is beyond silly and is the stuff of late night dorm room discussions when alcohol is involved. You, can always, of course, follow your conscience. Or claim the mandate of a higher power. The state, or in a democratic constitutional republic that means us collectively of which you’re just one voice, has the final say.

                1. Yes, and war is politics continued by other means. The bottom line remains that when there is a dispute, somebody has to resolve it, whether it’s between me and the IRS or between Trump and Pelosi. Somebody gets the last word, and it’s usually not feasible to send it to the voters.

    2. You realize this is a rebuttal to a law professor who does NOT agree with judicial supremacy, right?

      1. So, who do you think it was directed at? The conspirator, not the book other, says he supports judicial supremacy.

    3. Well, that’s almost always the best solution to road *capacity* problems.

    4. “Road,” or more commonly, “traffic” engineers know that widening roads often creates an increase in the speed of traffic. Narrowing roads can decrease speeds and actually lead to safer roads.

      1. The analogy is only to point out their self interest. Ask a professor at a college what subject is most important, that answer won’t shock you what an English professor would say.

  4. The basic problem with “judicial supremacy” is that the Court essentially operates without any oversight or effective check/balance.

    It was understood in the early days of our Republic that the Supreme Court would play a minimal role in a rather small federal government that really didn’t do much. That was fine (until it wasn’t the few times their unreviewable, final decisions pushed us into a civil war.)

    But in our post 14th Amendment days where federal courts are essentially another policy setting branch, using the Constitution as their legitimate power to do so, this is increasingly problematic. We were never meant to have a branch that had no effective check (and amending the Constitution in its current amendment process is not effective). Until we address this issue there will never be “peace in our time.”

    1. “without any oversight or effective check/balance”

      Exactly.

      Impeachment only exists for crimes. Constitutional amendments are difficult if not impossible to pull off. Even verbal criticism gets lawyers running for their smelling salts to defend judges.

      1. Constitutional amendments were not really designed to be a check on the judiciary either. There is no way you can glean that from the Federalist Papers even if one was trying to draw that conclusion.

        In fact, a Constitutional council (which exists in other forms of government) was expressly rejected by the Founding Fathers. But, nonetheless, that is sort of what we got.

        It has been awhile since I have done comparative political science work, but other forms of government that utilize such a mechanism have a way for either the people or the legislature to review those decisions. Even the distant relative of our Congressional system, Parliament, allowed the House of Lords to review decisions of the Law Lords.

        The problem with judicial review runs deeper then a “quick fix” like let 2/3 of Congress overrule a constitutional decision of the court. But if that is an amendment we can get through and it stops the next civil war I would support it.

    2. But the idea of either the federal government remaining small, or the Supreme Court continuing to play a minimal role, was a pipe dream from the start. Nobody with a basic, rudimentary understanding of either politics or human nature would have expected that result.

      The Constitution was basically a political expedient to get states to join the union. It worked. And it was entirely predictable in 1789 that as soon as it accomplished its goal, the federal government would grow and expand. If the authors and ratifiers really were that stupid, then shame on them. And shame on us for expecting anything different ourselves.

      1. I don’t know if it was entirely predictable. That is using hindsight to make what your portray to be a simplistic prediction that was not so in 1790.

        There is also an argument that the Constitution had an implied expiration date that we did not honor. The Founding Fathers were quoted in various secondary sources saying that the document would probably not persist for more than a few generations.

        If anything it is “shame on us” for not dealing with the core issue and instead throwing band-aid after band-aid on to the gaping wound.

        1. I think it’s predictable that people with a little bit of power will want a lot more, and that once people figure out that government can do good things for them, they want it to.

          And whatever your political views are, the problem with the Constitution at this point in time is that it is completely out of touch with the realities of current American politics. It creates a pressure cooker in which the urban public (which is the majority of the population) wants government to do one thing, but the country is effectively governed by flyover country, which wants something else entirely. And whether your own views are more in line with Manhattan, New York or Manhattan, Kansas, it’s not sustainable indefinitely for the majority to be thwarted in what it wants. Eventually the lid is going to blow off that pressure cooker. We may have another civil war.

          1. Urban vs. rural is nothing new. The electoral college was established because the delegates didn’t want essentially Pennsylvania and New York to elect the President. (Everything changes but stays basically the same apparently.)

            The idea though that New York City should be able to determine public policy because it has the most people is simply unsustainable. Complaints about rural areas dictating public policy usually aren’t because it doesn’t work but because urban folk want more power.

            1. But it’s not NYC that’s determining public policy; it’s American voters who happen to live in New York City. And what the EC is really about is diluting the votes of other Americans whom you don’t happen to agree with. So why should the fact that you disagree with them justify diluting their votes?

              1. Because we are not a direct democracy and there is no current government in the world that is for very good reasons.

                1. A direct democracy would be no legislature at all with the people voting on everything, which of course would be unfeasible. So of course we’re not a direct democracy. But that doesn’t answer the question of why your particular political views should be entitled to what amounts to electoral affirmative action.

            2. Urban vs. rural is nothing new. The electoral college was established because the delegates didn’t want essentially Pennsylvania and New York to elect the President.

              That is historical nonsense. Until 1920 the entire nation was more rural than urban. At the time of the founding, every state was extremely rural. The first census showed that the most urbanized state in the nation was . . . Rhode Island.

              There is simply no historical context to support the often-repeated notion that the EC was established to prevent urban domination of rural areas. But of course the EC does do that now, by happenstance, while delivering rural dominance of urban areas, and minority dominance over majorities. Whether that can continue is very much a question of how sustainable the rural dominance proves to be. This might be an appropriate instance for the old aphorism, “What can’t go on forever, won’t.”

          2. I don’t argue that given our current political dynamics and the fact both sides are entrenched (with no incentive to undo that stance) we are in the end stages of a pressure cooker scenario with civil war likely.

  5. I am amused by discussions like this, which happen all the time in the legal academy.

    Frankly, and to treat this with the scorn it deserves, I don’t give a flying **** whether Mark Movesian thinks Supreme Court cases are binding. His opinion, and $3.50, will buy him a latte at a local Starbucks.

    I do care that state and federal courts treat Supreme Court decisions as binding, and have for a couple of centuries now.

    To me, this is like the extreme right wingers who say that all the constitutional law of the past 85 years is wrong. Its pure masturbation. Use your intellect to discuss things that are actually at issue and matter.

    1. Pregerson said at his confirmation hearing that he wouldn’t follow precedent if it conflicted with his conscience. And he sometimes didn’t. He was usually overruled.

    2. It always amuses me when people in the legal field, especially academics, assume they are the natural leaders and that their “supremacy” is of course the conclusion we should all come to.

      1. That’s exactly it.

        There’s like 5,000,000 legal issues that are either unexplored, under-researched, or hotly contested, where the voice of a smart legal academic would add something. Of course, it wouldn’t be authoritative, but it could be helpful. Good legal scholarship really has influenced the judiciary, in many areas.

        Instead, we get tired exclamations about issues that were settled decades or centuries ago, as if the world was waiting for this guy to give his opinion on them.

        1. You’re an expert because you used four asterisks to indicate the word “fuck.” That proves you’re Extremely Serious.

          1. LOL. I use it if it is necessary. Didn’t think it was here.

            1. Nothing like suggesting the word “fuck” to show what a superior analytical thinker you are.

              1. I thought it made the point better of how worthless OP’s opinion is.

                1. The important thing is how many fucks you give. The more fucks, the sounder the argument.

                  You’re wrong. Fuck fuck fuck fuck fuck.

  6. “Richard Fallon offers a good way to think about it. Judicial supremacy means that ‘judicial rulings must be obeyed as long as they are intra rather than ultra vires’—that is, as long as they are plausibly ‘within a court’s authority to render’—and ‘not unreasonable as judged from the perspective of the President and a majority of the American people.'”

    *This* is judicial supremacy? It sounds like weak sauce from the standpoint of a hard-core judicial supremacist.

    But if that’s what Fallon is going with, it sounds like a fair formulation.

    “If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.”

    Who thinks that our constitutional democracy is tolerably functional?

    1. and ‘not unreasonable as judged from the perspective of the President and a majority of the American people.’”

      “I’m supreme!!! Right, honey?”

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