Bench Memos

Law & the Courts

A Model Answer to the ‘Judicial Supremacy’ Test Question, Part 2

Picking up where I left off in my last post, with my “model answer” to an exam question asking about the duties of various constitutional officers to comply with a clearly wrong Supreme Court decision. (The original exam question, and an introduction to the problem, are set forth in this post.)

(b) Is it constitutionally proper for a lower-court judge to refuse to enforce the flagrantly unconstitutional Sedition Act of 2015? Does it make a difference that “controlling” U.S. Supreme Court precedent has (wrongly) held that the statute is constitutional?

The reasoning here is, I think, the same as with the constitutional duty of the president not to enforce an unconstitutional statute, even if the Court has sustained it. The statute is unconstitutional; the lower court judge’s oath is to support the Constitution, not the Supreme Court’s misinterpretations of it; and the text of Article III does not command a different result.

That last point presents a more difficult and intriguing question, which I concede is quite controversial. I am always curious to see what students will think. Does the describer “inferior” court make lower court Article III judges the subordinates — law clerks, robots, potted plants, flunkies, call them what you will — of the Supreme Court? Or are they structurally independent constitutional officers, appointed by the president and confirmed by the Senate, whose decisions simply may be reversed by other courts — if Congress’s appellate jurisdiction statutes so provide? I think (and have written) that the structure and logic of Article III makes the Supreme Court “supreme” in the respect that no appeal properly may lie to any other court from its decisions – but that is about all. It does not transform lower courts into mere administrators of the Supreme Court. Lower federal court judges are “inferior” in the sense that they are not supreme; an appeal may properly lie to another federal court.

The precise form of the now-familiar appellate hierarchy is mostly a function of Congress’s statutory enactments, not constitutional command. (The Exceptions Clause, after all, permits Congress to withdraw certain types of cases from the Supreme Court’s appellate jurisdiction, and vest their final decision elsewhere. “Supreme” does not mean “has to have power to decide everything.”) As a consequence of the (present) statutory hierarchy, a lower court judge’s correct decision refusing to follow Paulsen in the Whelan case might well be reversed by the Supreme Court (wrongly, a second time). But the reality of likely reversal does not mean that the lower court judge is literally “bound” to follow erroneous Supreme Court precedent. A lower court judge is not, constitutionally, a flunky of his or her higher-ups: he or she is not appointed by and cannot be removed by the Supreme Court and holds his or her office by life tenure.

Simply put, the specter of probable reversal, flowing from the statutory appellate hierarchy, does not of its own force require lower court judges to violate their oaths and order the execution of Mr. Whelan. And the prospect of reversal is all that the chain-of-appeal hierarchy entails. The terms “supreme” and “inferior” do not themselves impose a constitutional duty to follow higher court precedent, but merely establish one rule concerning the appellate hierarchy. Thus, lower court judges can, should, and must require the Supreme Court to do its own dirty work.

There are at least two good (there are also some bad) examples of this phenomenon – which I have dubbed “underruling.” One is Browder v. Gayle, 142 F. Supp. 707 (D. Ala. 1956), aff’d 352 U.S. 903 (1956), in which the lower court refused to follow Plessy v. Ferguson, even though it remained “controlling” precedent (notwithstanding Brown v. Board of Education) on the specific question of segregated transportation. (Brown was explicitly limited to the context of segregated education.) Another example is Barnette v. West Virginia Board of Education, 47 F. Supp. 251 (S.D.W.Va. 1942), aff’d 319 U.S. 624 (1943), in which the lower court disregarded the “controlling” authority of Minersville School District v. Gobitis, which had upheld a mandatory public school flag salute and Pledge of Allegiance recitation. In both cases, the “underruling” lower court was vindicated.  

The Supreme Court (of course) has never embraced the validity of underruling. Instead, it has, several times (but not in Gayle or Barnette), told lower courts that they should go ahead and abide by the erroneous decision and trust the Supreme Court to overrule itself when appropriate.

A power of lower court defiance of Supreme Court precedent defies all conventional wisdom. But I think that such a stance is correct in principle.

Two more aspects of the question in subsequent posts: May juries independently interpret the Constitution and defy legal instructions from judges that they determine in good faith to be unconstitutional? May the president decline to execute a final judicial judgment and order– even of the Supreme Court – on constitutional grounds the Court rejected? 

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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