Bench Memos

Law & the Courts

A Model Answer to the “Judicial Supremacy” Test Question, Part 1

In my last post I began wading, gently, back into the “judicial supremacy” debate.  As a way to think about the discussion, I shared one of the questions on my exam for my undergraduate “American Constitutional History” course.  Today, I’ll offer some thoughts for a “model answer.”  (Yours may differ, of course.  There was quite a range of interesting student answers!)  I’ll divide my discussion into four posts, corresponding to the four subparts of the question – each presenting a slightly different aspect of the issue.

A brief reprise of the question: Congress passes, the President signs, and the Supreme Court upholds a flagrantly unconstitutional “Sedition Act of 2015” that makes it a crime to criticize government policy, defines the crime as treason, obliges the president to prosecute, is punishable by slow torture, forbids presidential pardons, and works a corruption of blood.

The point is that the statute is, objectively, incontrovertibly unconstitutional

Can we all agree with that as a starting point for discussion?   (Pause and reflect on this for a moment before proceeding.  A necessary premise of what follows is that there are such things as objectively correct answers to constitutional questions.  We may disagree sometimes as to what those answers are – and sometimes the “correct” answer is that the Constitution permits of a range of legitimate answers – but in theory there is always some correct answer and in this hypothetical that correct answer is an easy one.) 

The question is designed to get students to think about – and question – the common assumption of judicial supremacy, in a context where that question is sharply framed and uncluttered by any possible disagreement as to the merits of the constitutional question being addressed.   

The question further posits that the Supreme Court, by vote of 5-4, goes completely bonkers and upholds the statute against constitutional challenge, and orders the President to enforce it, in the particular case decided (United States v. Michael Paulsen) and in subsequent cases.  It is so ordered.  A second, indistinguishable case of “sedition” comes up involving one Mr. Whelan.  (Sorry, Ed.)  A new president has taken office, President Goodman (a wonderfully appropriate name, and the actual name of a female student in the class).

I then pose four sub-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? 

The right answer (of course!) is that the objectively, incontrovertibly unconstitutional Sedition Act of 2015 is still objectively, incontrovertibly unconstitutional.  The Supreme Court’s decision in Paulsen saying it ain’t so doesn’t change objective constitutional reality. The Supreme Court’s decision in Paulsen is, in a word, wrong.  

How does this then play out in terms of the binding legal effect of a wrong Supreme Court decision?

(a) Is it constitutionally proper for President Goodman to refuse to execute (so to speak) the unconstitutional statute against Mr. Whelan?  I believe the right answer is yes.  The President swears an oath to support the Constitution – indeed, a unique and singular one to preserve, protect, and defend the Constitution.  Article VI designates the Constitution as supreme law.  By the same reasoning that holds that courts must refuse to apply unconstitutional statutes (set forth in essentially identical steps in The Federalist No. 78 and Marbury v. Madison), the President likewise must refuse to apply unconstitutional statutes.  She is no more bound by Congress’s unconstitutional statute than the courts are.  And, by precisely the same reasoning, she is no more bound by the Court’s decision misinterpreting the Constitution than the courts or president are bound by Congress’s misinterpretations of the Constitution.  Paulsen (the decision, not the professor) is simply wrong.  And a faithless misinterpretation of the Constitution is not binding on the other branches of government, who are duty bound to enforce the Constitution and not the faithless departures from it by other governmental actors.  The reasoning of Marbury is exactly the same here, as applied to the constitutionally faithless decisions of courts as to the constitutionally faithless enactments of legislatures.  (I provide a more extensive treatment of this point in an article I published in the Michigan Law Review, on the occasion of the 200th anniversary of Marbury, entitled “The Irrepressible Myth of Marbury.”)

In subsequent posts, I will sketch what I think are the right answers to the remaining aspects of the question – whether lower court judges are bound by the wrong precedent in Paulsen, whether jurors are bound by wrong judicial instructions based on that precedent, and whether President Goodman is bound to execute Mr. Paulsen – to carry out a judicial decree that she is persuaded (with good reason) is unconstitutional. 


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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