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Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy

After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate.  As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.

What might obligate the executive or Congress to follow judicial precedents?  One starts, of course, with the text of the Constitution.  The judicial power extends only to “cases” and “controversies.”  Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment.  The judgment decides the case; the precedent is about possible future cases that have not arisen.  This is part of the core of the case for departmentalism.

This textual argument involves not only departmentalism, but also the related question of the bindingness of judicial precedent as to courts.  Those who disagree with the bindingness of precedent often in part justify their position on the ground that judges only get to decide cases, not to establish future rules.  Thus, there is a similarity of arguments as to departmentalism and the denial of the bindingness of judicial precedent on courts.

To get to a judicial supremacist position, one needs to find another source of the obligation to follow the judicial precedents than the simple power to decide cases and controversies.  Similarly, to find an obligation of courts to follow judicial precedent, one needs to find another source of that obligation.  In the case of judicial precedent, people often find it in one of two places – either in the Constitution itself through the judicial power or in federal common law (or to be more precise in the general law).  In our work together, John McGinnis and I (following John Harrison) argue that the courts’ obligation to follow judicial precedent rests principally on federal common law.

A similar argument might follow for judicial supremacy.  Thus, one might find the basis for the executive and the Congress to follow judicial precedents either in the Constitution (principally in the judicial power) or in the common law.  I think that one of these two supplies the rule.  Of course, whichever one supplies the rule, there needs to be evidence for that view.  In both cases, there should be evidence that the executive and the legislature regularly followed judicial precedents.  In the next post, I will discuss the evidence a bit more.

Before getting further along in the argument, I should note that I do not necessarily believe the evidence supports an obligation of the executive and legislature to follow a single decision of the courts.  As I shall discuss further, it may be that the executive and legislature were only obligated to follow a series of decisions of the courts.  Until that series of decisions occurs, the executive and legislature might have more discretion to determine what interpretations to follow.  One might question whether this is appropriately termed judicial supremacy, which is why I describe my position as leaning towards judicial supremacy rather than embracing it.

Reader Discussion

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on June 18, 2015 at 22:24:33 pm

Why would multiple decisions mean the courts have the power to bind the executive and congress when they cant with a single decision? How many does it take?

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Devin Watkins
on June 19, 2015 at 09:21:30 am

I would put the "over-under" at about 6 - unless, of course, it is a notoriously bad decision, then it somehow seems to be binding with only one decision.

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gabe
on June 19, 2015 at 13:10:24 pm

Shouldn't you distinguish between the executive's obligation to follow a judgment, and the executive's obligation to follow an order in equity? It seems to me that the executive is legally bound by the judgments in particular cases, but also in general by the contempt and remedial powers of the courts.

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ART
on June 21, 2015 at 10:39:42 am

Gee guys, the following MAY cause some to question their *academic* arguments and see how the COURT(s) certainly seem to ACT as if they are Supreme. witness how they are "cabining" both Legislative and Executive power in the case of al-Bahlul v. United States in the D.C. Circuit Court

Read more at: http://www.nationalreview.com/article/420066/military-commissions-al-bahlul-united-states

"Of course, the handling of alien enemy combatants in wartime — as opposed to American criminal defendants in peacetime — has long been a constitutional prerogative of the commander-in-chief, not the courts. Moreover, as the majority judges concede, Congress expressly approved the commissions and vested them with authority to try conspiracy offenses. Judges Rogers and Tatel nevertheless contend that because “inchoate conspiracy” has not traditionally been a crime under the law of war, Congress is impotent to permit conspiracy trials by military commissions. Thus does the majority elevate the theorizing of international law scholars over the legislative act of the people’s representatives, notwithstanding that the Constitution makes Congress supreme in both defining federal offenses and delineating the jurisdiction of the federal courts. The majority’s rationale is ably rebutted in an 85-page dissent by Judge Karen LeCraft Henderson, a George H. W. Bush appointee. Judge Henderson is duly taken aback by the court’s arrogance in undermining wartime national-security decisions, a subject the Constitution commits to the judgment of the political branches, and one on which judges have scant institutional competence. At the Supreme Court’s urging, the president and Congress had come together on a system for trying enemy combatants. From a constitutional standpoint, therefore, the military-commissions system they enacted was owed maximum judicial deference."

It appears that the Black Robes (in typical Jesuitical fashion) are very selective when it comes to deference and employ it ONLY to enhance their own "prerogative" to determine what is law, what is proper, etc. Contrary to popular opinion, "deference" and "political doctrine" questions are NOT limits on judicial power / discretion but rather a mechanism by and through which the Black Robes expand their influence and power over the other branches.

Alice! Take back your looking glass!!! The Black Robes have become entirely too fond of it.

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gabe
on June 22, 2015 at 11:16:17 am

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Image of Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History - Freedom's Floodgates
Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History - Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.