As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
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.