Riker and Weingast argue in the Virginia Law Review that social choice theory’s “chaos theorem” augurs for heightened judicial review.
In Reconsidering Judicial Finality: Why the Supreme Court Is Not the Last Word on the Constitution, Louis Fisher sets out to demolish the “myth” of judicial supremacy. “Federal judges, legal scholars, and reporters,” he writes, “frequently claim that when the Supreme Court issues a constitutional decision it remains final unless the Court changes its mind or the Constitution is amended to reverse the Court.” Fisher argues that this view is “plain error.” To back his claim, he offers numerous historical examples in which the President and Congress have declined to go along with Court rulings or in which the American public has pressured the Court to reverse itself over time. This is all to the good, he argues, since the Constitution does not require other state actors or the public to accede to the Court’s understanding of constitutional provisions and since resistance has often helped the Court find the right path. “Equating constitutional law with the Supreme Court,” he writes, “is not healthy for democracy, the Court, or the rule of law.”
Fisher, a scholar in residence at The Constitution Project and the author of dozens of books over the course of a distinguished career, has an encyclopedic knowledge of the Court’s constitutional jurisprudence, and his erudition shows here. Reconsidering Judicial Finality offers a wealth of detail on important cases. And Fisher is right that there is no American tradition of “automatic deference to judicial rulings.” History shows constitutional questions are often negotiated among the Court, other political actors, and the American public. For its collection of examples, Reconsidering Judicial Finality is a helpful contribution to the literature.
Nevertheless, the book suffers from two flaws. First, Fisher critiques a version of judicial finality—judicial “supremacy” is the term commentators typically use—that is so expansive that even most supporters would reject it. Many examples he gives to refute judicial supremacy are, in fact, consistent with the doctrine, properly understood. Second, Fisher does not sufficiently explain why he thinks judicial supremacy is so dangerous, nor why so many people, historically and now, have thought that judicial supremacy is, at least most of the time, a good thing. His failure to grapple seriously with the arguments in favor of judicial supremacy detracts from this otherwise valuable book.
Understanding Judicial Supremacy
To understand judicial supremacy, one must distinguish between two different concepts to which the phrase may refer. First, there is the binding effect of a judicial ruling on the parties to a case. Most everybody believes that the parties to a lawsuit must comply with a court judgment and that the executive branch must enforce a judgment when called upon to do so. True, Presidents have groused about particular judgments and once or twice refused to enforce them. During the Civil War, President Lincoln famously refused to comply with Chief Justice Taney’s order to produce a federal prisoner in Ex parte Merryman; a generation earlier, President Jackson allegedly made clear he would not send federal marshals to enforce the Court’s decision and release a state prisoner in Worcester v. Georgia (“John Marshall has made his decision; now let him enforce it”). Likewise, in the antebellum period, state courts sometimes refused to comply with Court judgments in cases remanded to them. But these examples are exceptional. One should not make too much of them.
Second, judicial supremacy may refer to the duty of government actors and the public to abide by the reasoning of a Court opinion in subsequent, similar situations involving different parties. Say, for example, that the Court rules that a legislative veto violates the Presentment Clause. Must Congress forgo legislative vetoes in all subsequent legislation? Or may Congress continue to enact legislative vetoes on the view that the Court decided the question incorrectly and in the hope the Court will change its mind? Put more broadly, may Congress—or the President, the states, and the people as a whole—exercise independent judgment about what the Constitution does and does not require?
On this question, there is more controversy. Some scholars—Michael Stokes Paulsen, for example—argue that, at least in some circumstances, governmental actors may exercise independent judgment in interpreting the Constitution and need not follow the Court’s reasoning. The classic illustration is President Jackson’s decision to veto the Second Bank of the United States on constitutional grounds, notwithstanding the fact that the Court had earlier ruled a national bank constitutional. The legislative veto provides another example. As Fisher notes, Congress continues to enact legislative vetoes decades after the Court ruled them unconstitutional in INS v. Chadha.
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.”
Refuting Judicial Supremacy?
Many of the historical examples Fisher offers to demonstrate that judicial supremacy is a myth involve situations where the Court simply changed its mind in response to challenges to earlier rulings, or where the American people amended the Constitution. Dred Scott was superseded by the Civil War Amendments; Pollock v. Farmers’ Loan & Trust Co. (1895), which invalidated the federal income tax, by the Sixteenth Amendment. Hepburn v. Griswold (1869) ruled against the validity of paper money; four years later, the Court overturned Hepburn in the Legal Tender Cases. The Civil Rights Cases (1883) held that the Civil War Amendments did not authorize a congressional ban on private discrimination; almost a century later, the Court found an alternative constitutional basis in the Commerce Clause. For decades, the Court held to an expansive doctrine of liberty of contract under the Fourteenth Amendment, only to abandon the concept in the 1930s in response to a series of legal challenges and political pressure from the Roosevelt Administration.
None of these examples refute judicial supremacy, properly understood. Or consider the Court’s religious liberty jurisprudence, to which Fisher devotes a chapter. In Minersville School District v. Gobitis (1940) the Court ruled, 8-1, that public schools could require students to recite the Pledge of Allegiance, notwithstanding the students’ religious objections. Three years later, in response to widespread public revulsion (and with a couple of new members), the Court overruled Gobitis in West Virginia State Board of Education v. Barnette. Fisher apparently believes this episode disproves the idea of judicial supremacy, but that is incorrect. The episode could refute judicial supremacy only if the doctrine meant that litigants could never legitimately challenge a Court ruling and the Court could never legitimately change its mind. That is not what the doctrine means.
Fisher never explains in detail why he thinks judicial supremacy is so dangerous. He does note that the Court is “fully capable of error” and often, as in the Civil Rights Cases and Gobitis, has failed to promote social progress and the rights of minorities. The first point is a bit of a truism; the second is interesting, but Fisher never sufficiently explains why the Court has failed to live up to its billing as an anti-majoritarian institution. Similarly, although he states that the American people should reject judicial supremacy in the interests of “freedom, discourse, democracy, and limited government,” he never sufficiently develops these themes.
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.
This is not to say that judicial supremacy is always a good idea. Fisher is right to counsel caution in embracing the doctrine. It would have been appropriate, though, for Fisher to spell out his objections more fully and give the arguments in favor of judicial supremacy more time than he does. Reconsidering Judicial Finality is a valuable addition to the literature. If Fisher had taken the arguments against his position more seriously, it would have been more valuable still.