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Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents

In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be.  Let me remind the reader of two points from my prior posts:  First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment.  Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).

While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was.  One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided.  Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.

One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent.  A single precedent did not appear to obligate a court to follow that precedent.  Such a precedent needed to be considered, but it was not binding.  Rather, it was a series of precedents that obligated a later court to follow the precedent.  See here.

One might believe that the same principle applied to interbranch differences.  And therefore the executive and legislature might be obligated to follow the judicial decisions only when there has been a series of decisions reaching the same result.

There is, moreover, a theoretical reason that one might believe that the same rule would apply for the bindingness of judicial precedents on courts and on the executive and legislative branches.   When a series of decisions becomes binding on future courts, one might say that that series had come to be recognized as “the law.”  Before the series had been completed, the judicial decisions were simply the views of a few courts.  After the series, those decisions state the law.  And as the law, it might make sense that it would be binding not merely on future courts, but also on the executive and the legislature.

While I have not investigated to what extent the executive and legislative branches were bound by a series of decisions, there is some mild support for this from a President who the departmentalists see as their champion: Abraham Lincoln.  In his first inaugural, Lincoln wrote:

the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

This statement is not entirely clear, but it might mean that a single decision cannot bind the entire government, but that a series of decisions over time can.

This understanding of the bindingness of judicial precedents then represents something of an intermediate position between departmentalism and judicial supremacy.  I consider it a type of judicial supremacy because a series of judicial decisions can bind the other branches, but it is a much weaker form than what exists today.

Ultimately, the right answer to this issue will turn on two matters that I have mentioned, but not sought to resolve fully: the practices at the time of the Framing and whether the obligation (or not) of the political branches to follow judicial precedents is a matter of constitution law or common law.’

It is also worth emphasizing one additional point.  If the obligation of the executive and legislature to follow judicial precedents is a matter of constitutional law, then the practice at the time of the Constitution will be frozen into place.  By contrast, if that obligation is a matter of common law, then it is possible that the obligation might have changed over time – as we now seem to assume that a single decision of the Supreme Court decides the matter and the Court will not accept cert simply to reiterate a previously decided issue.

Reader Discussion

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on July 07, 2015 at 12:49:07 pm

I find it very ironic that the quote about the Supreme Court not having the authority to decide "questions affecting the whole people" is what you are trying to use to say that the Supreme Court does have the authority to do so (if only they repeat themselves several times). Judges do have the power to declare a law unconstitutional and void and that is just binding upon the executive as it applies to that law (the congress and the president can try to enforce another statute or in another context that they think doesn't violate the constitution but might fall within the reasoning of the court). BUT (and this is important), the Court does not have the power to order the enforcement of any law. So no, not all judicial orders are binding, just those that prohibit government power by finding laws unconstitutional. I want to see how you justify your position in the context of these quotes from the founders:

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." -Thomas Jefferson

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson

"My construction of the Constitution is... that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." --Thomas Jefferson

"Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles." -James Madison in the national convention, notice that each of the departments is given "defensive authority" as much to stop the courts as to allow the courts to stop other branches (http://press-pubs.uchicago.edu/founders/documents/v1ch10s10.html)

"It had been said [by Mr. L. Martin] that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." James Madison in the national convention July 21 (notice the only power that the judges have is to declare a law void as it is unconstitutional, they do not have the power to order the enforcement and so any such order can be ignored) http://avalon.law.yale.edu/18th_century/debates_721.asp

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Devin Watkins
on July 07, 2015 at 14:04:12 pm

"the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

and

" By contrast, if that obligation is a matter of common law, then it is possible that the obligation might have changed over time – as we now seem to assume that a single decision of the Supreme Court decides the matter and the Court will not accept cert simply to reiterate a previously decided issue."

Mike:

Thanks for a thoughtful and fair look at this issue.

While I can understand your conclusion, I am not, as of yet, convinced of it.
Examining the preceding two quotations, one can, at first glance, see both the connection and the ultimate effect, in practice, as it may seem to offer some evidence that whilst in the past, we would require multiple like decisions (as at common law?), we have apparently moved to a position that requires only that there be a "Lincolnian" instant.

Yet, it is also clear to me (from my reading of Lincoln's words / intent and practice) that Lincoln was not making so fine a distinction - that is, whether one single decision or a multitude of similar decisions should or would be binding. If anything Lincoln was that the Court was wrong, and rather than put such a fine point on the matter, Lincoln was simply decrying the fact that the Judiciary felt empowered to a) attempt to resolve the contemporaneous crisis, b) that they should be so wrongheaded in their decision making AND c) that for the people to accept this judicial determination (and other ones?) would mark the end of self-governance.
If Lincoln were about anything - it was self governance / consent of the governed - was this not the predicate upon which he based his anti-slavery position. To assume that he would accept Taney's decision even after multiple instances of it seriously underestimates Lincolns commitment to the equality principle as he would define it.

I suspect that you were not making the point that Lincoln *would* accept it after multiple decisions; my point is that Lincoln would appear to be one who would not yield to the Judiciary when he believed them wrong, either constitutionally or morally.

Anyway, nice collection of essays.

seeya
gabe

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gabe
on July 07, 2015 at 23:45:48 pm

Devin:

Wonderful!

Said somewhat better than my humble attempt below.
Your opening statement hits it on the head.

"...what you are trying to use to say that the Supreme Court does have the authority to do so (if only they repeat themselves several times). "

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gabe

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