Bench Memos

Law & the Courts

A ‘Judicial Supremacy’ Test Question

I’ve been out of touch for a few days – some would say that I’m out of touch every day – and am just now catching up on the excellent discussion, at various websites, of the question of “judicial supremacy”:  Do other governmental actors have a duty to abide by, enforce, and generally conform their governmental actions to Supreme Court decisions, without regard to whether the decision is right or wrong? 

I kicked up the issue with a post on The Volokh Conspiracy the week before last, entitled “The Myth of Judicial Supremacy” and another one entitled “Lincoln Versus Judicial Supremacy.”   The two posts were part of a series of essays promoting my recently released book, The Constitution: An Introduction, co-authored with Luke Paulsen.  One of the recurrent motifs in our book is the question of who has the power of constitutional interpretation and how that issue plays out in our constitutional system of separation of powers and federalism.  We also discuss how the several branches of the national government have, historically, dealt with the problem of overreaches or misinterpretations of the Constitution by rival constitutional actors. 

(The book is broader than that, of course.  Our aim is a comprehensive general-readers introduction to the Constitution in all respects: origins, meaning, history of interpretation.  The question of the scope of judicial power vis-à-vis the other branches of government is just one of many questions considered and discussed. )  

Since my Volokh Conspiracy posts, there has been a flurry of excellent and intriguing posts on the topic of “judicial supremacy”– coming from a wide variety of stances – written by some outstanding constitutional scholars, including (among others) Michael Ramsey, Randy Barnett, Ilya Somin, Ed Whelan, and Gregory Weiner. 

I’m jumping back into the discussion, belatedly.  I will be writing a series of posts on the topic this week (and maybe into next). 

One theme to which I am likely to return concerns the problem of labels and definitions.  It is difficult to pin down different folks’ different positions in part because of the way they characterize their stances.  I will try to slice through the labels and get to the substance of various views. 

A partial summary of the debate:  Nearly everyone, it seems, defends at least some limited version of the view that the federal judiciary’s final judgments are conclusive and binding on the other branch’s of the national government, and on state government actors.  Some go further than that, to varying degrees.  (Ed Whelan may be an exception to this consensus on the supremacy of judgments; but I’ll let him speak for himself.)  But almost everyone agrees that a court’s final resolution of a specific case is binding on the parties, on the executive, and on the legislature.

At the same time, nearly everyone, it seems, defends at least some limited version of the rather different proposition – in considerable tension with the first – that the other branches possess a sphere of autonomy and independence in constitutional interpretation.  That is, Congress, the President, and perhaps others possess a “co-equal” prerogative of constitutional interpretation – at least to some extent. 

With deep respect for all involved in the discussion, I believe that to hold both propositions simultaneously is analytically incoherent.  Genuinely “co-equal” interpretive authority and “judicial supremacy” (to any degree) are fundamentally inconsistent with one another.  If the judgments of the judiciary are supreme and binding on everyone else, and if the judiciary is likewise supreme in deciding the scope and content of such judgments and their own jurisdiction and authority to enter them, then there is no genuine sphere of independent interpretive authority in the other branches. 

Any asserted such sphere of “independent” interpretive authority by others is illusory, and exists solely as a matter of judicial grace.   The power to render judgments that bind the actions of other branches swallows up any pretense of co-equal interpretive power.  (It also renders any claim that such a judicial power is itself merely a “co-equal” interpretive power a complete misnomer.  As Orwell might have put it: all branches possess co-equal interpretive power, but the judiciary’s co-equal interpretive power is more co-equal than everybody else’s.)

On the other hand, if the power to interpret the Constitution is truly a co-equal power, shared in common by all governmental actors incidental to their other assigned powers and functions, and not authoritatively assigned to any of them, none is bound in their actions by views of any of the others.  (This is my position.)  On such a view, it is hard to carve out, legitimately, an exception for the supremacy of judicial judgments that does not end up defeating the general rule. The exception is either a spurious one – it exists by the grace of the other actors who willingly accede to wrong judgments, not because the Constitution commands such a result but because they have chosen to allow it – or the exception, if constitutionally mandated, turns around and devours the supposed coordinate-interpretive-power general rule. 

This was essentially the position I took in one of the first articles I wrote as a law professor, back before the invention of the typewriter:  “The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation” (15 Cardozo Law Review 81 (1993)).

As I said, I hope to return to this point in a later post. 

Today, I would like to re-boot the discussion with a hypothetical.  (That’s what law professors like to do.)  The hypothetical, I believe, can helpfully frame one’s thinking about the question of judicial supremacy.  For if the proposition is that the Supreme Court’s judgments are, in some or all respects, absolutely binding on other constitutional actors, irrespective of their correctness, then the way to test that proposition is to think about the question in a situation where we can all agree that the Supreme Court’s judgment is wrong. 

That’s fair, isn’t it? If the obligation to abide by Supreme Court decisions does not exist where the Supreme Court has decided a case incorrectly, then there is very little to the notion of judicial supremacy.  If the obligation to abide by a decision is in fact dependent, at some level, on the correctness or incorrectness of the decision, then we’re not arguing about judicial power and the absolute duty to obey judgments.  We’re arguing about the correctness or incorrectness of the specific decision.  That is why I like to present the issue in a context uncluttered by disagreement over the correctness of the underlying decision.  The issue is best framed in a setting where we can all agree that the judicial decision is wrong.

There are two cases I like to use for this purpose.  One is Dred Scott – which most folks today recognize as a clearly, horribly, destructively, morally reprehensible, and seemingly intentionally wrong constitutional holding of the Supreme Court.  Do other constitutional actors have a duty to go along with the Court’s decision, because it was the Court’s decision, no matter how clearly and willfully and horribly wrong?   I wrote a very long – but I hope very interesting! – law review article framing exactly this question in exactly this context:  “Lincoln and Judicial Authority” (Notre Dame Law Review, 2008).  That real-life situation was also the subject of one of my Volokh Conspiracy posts.    I might return to Dred Scott later in the discussion.

The other “case” is a hypothetical I inflict on law students and undergraduates to test their un-thought-through judicial supremacy assumptions. And this explains in part my temporary absence from the blog debate: I’ve been grading exams.  (A colleague once told me, accurately, as I was beginning law teaching:  “Michael, we teach for free. They pay us to grade exams.”)

So I’d like to rejoin the debate by asking readers to think about how they would answer this exam question, taken from this year’s actual (undergraduate) take-home exam.  I’ve modified the names somewhat, to avoid or disguise use of students’ names.  But otherwise it’s exactly the same question.  (I must confess that I have swiped aspects of this hypothetical from Judge Frank Easterbrook.) 

I’ll offer thoughts and a possible “Model Answer” in my next post. 

Rest assured, I’m a generous, broad-minded grader.  Students’ answers never need agree with my own views.  But they must wrestle seriously and thoughtfully with the issues.  (Mike Ramsey, Randy Barnett, Ilya Somin, and Ed Whelan of course all get A+s.) 

So:  What do you think is the right answer to the judicial supremacy question, in each of the situations presented?  

QUESTION ONE: A Treasonous Hypothetical!

Congress passes, and President Larson signs into law, the “Sedition Act of 2015,” making it a crime to criticize the government of the United States, defining this offense as treason, making such a crime punishable by death by slow torture, requiring the President to prosecute all offenders, and forbidding any presidential pardon of persons duly convicted and sentenced to death.  Moreover, conviction of such an offense works a forfeiture of all worldly goods and a corruption of blood for the next six generations of direct lineal descendants of the guilty party.

A quick perusal of the U.S. Constitution leads to the almost unavoidable, objectively correct conclusion that the Sedition Act of 2015 is patently unconstitutional.  (Isn’t that right?  Feel free to discuss, briefly, as you feel appropriate – though my emphasis is on the questions below.) 

President Larson is defeated for reelection in 2016 by Governor Goodman of Minnesota, who is sworn in as the nation’s new President in January 2017. 

In the meantime, however (and I do mean “mean time”!), the “lame-duck” administration of President Larson brought a test case prosecution against alleged offender Paulsen.  Mr. Paulsen raises the unconstitutionality of the Sedition Act of 2015 as a defense to his criminal prosecution.  The lower courts rule against his challenges, and he is convicted of sedition and sentenced to death by slow torture.  He appeals, all the way up to the Supreme Court.  Astonishingly, in the case of United States v. Paulsen, the Supreme Court, by vote of 5-4, in an outrageous opinion by Chief Justice [Kennedy], upholds the statute in its entirety and affirms the criminal conviction and sentence of Paulsen.  The Supreme Court’s decision is rendered on President Goodman’s first day of office, in January 2017.

A subsequent situation arises, now, in 2017, involving clear violation of the Sedition Act’s terms, by a certain Mr. Whelan.  The fact situation is essentially indistinguishable from that involving Paulsen. 

Please address these four questions:

(a) Is it constitutionally proper for President Goodman to refuse to enforce the statute against Whelan, on the ground that she believes, in good faith, that the statute is unconstitutional – notwithstanding the Supreme Court’s decision in Paulsen?

(b) Is it constitutionally proper for a lower court judge to refuse to enforce the statute on the ground that it is unconstitutional, notwithstanding the Supreme Court’s decision in Paulsen

(c) Is it constitutionally proper for a jury in a criminal case brought against Whelan (or somebody else) to refuse to convict the accused, on the ground that the statute is unconstitutional, notwithstanding the trial court’s explicit instruction that the statute is constitutional, under the Supreme Court’s decision in Paulsen

(d) Is it constitutionally proper for President Goodman to refuse to carry out the sentence of execution against Paulsen – to defy both the statute and the Supreme Court’s judgment upholding it and its decree directing that the torture and execution proceed forthwith? 

Explain and defend your answer (of course), drawing upon your constitutional knowledge and reasoning skills learned in this course.  Your answer may take any format you see fit, so long as you address yourself sufficiently to each aspect of this four-part question. 

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.


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