At oral argument on Monday in the Texas Heartbeat Act cases, Chief Justice Roberts seemed unpersuaded by an argument made by intervenors supporting Texas in a brief filed in the Fifth Circuit in United States v. Texas. That brief had argued:

The federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s, and they have every prerogative to enact laws that deprive the judiciary of opportunities to consider pre-enforcement challenges to their statutes.

The Chief asked Texas solicitor general Judd Stone:

There was a statement in one of the briefs filed below, not — not by you, that said “states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s.” Does the State of Texas have a position on that?

The phrase “every prerogative” is susceptible to different meanings, and the difference between “states” (the Chief’s shorthand) and “state political branches” might also matter in some instances. But the Chief’s question has been understood by many to mean that he must think that state legislators are obligated to abide by the Supreme Court’s interpretations of the Constitution, no matter how mistaken or imperiled they believe those interpretations to be. I doubt very much that he does. Let me briefly explain why.

In Dred Scott, the Court declared that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” Would anyone think that meant that legislators in free states in the immediate aftermath of the Dred Scott ruling were obligated to respect that interpretation by repealing laws granting freedom to slaves brought within their borders or by enacting laws denying such freedom?

When justices themselves sharply divide over interpretations of the Constitution, are state legislators obligated to embrace the majority’s interpretation? Is it improper for them to enact legislation that tests the soundness of that interpretation and gives the Court the opportunity to change course? Must state legislators abide by a specific interpretation made decades ago even if there is ample reason to expect that the Court today would adopt a different interpretation?

I doubt very much that anyone, on reflection, would embrace these propositions, and I would certainly not attribute them to the Chief.

(Longtime readers might recall that I have had plenty of occasions to criticize the myth of judicial supremacy and to explain that it is logically incompatible with the supremacy of the written Constitution.)