Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
More of Lincoln on Departmentalism vs. Judicial Supremacy
Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again! In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “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” (emphasis added). I noted that one might interpret this as expressing the view that a series of decisions might bind the other branches of the government.
Seth Barrett Tillman alerts me to this longer statement by Lincoln, from his Speech on the Dred Scott Decision, given at Springfield, Illinois, on June 26, 1857:
Judicial decisions are of greater or less authority as precedents according to circumstances. That this should be so, accords both with common-sense and the customary understanding of the legal profession.
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts, which are not really true; or if wanting in some of these, it had been before the court more than once, and had there been affirmed and reaffirmed through a course of years,—it then might be, perhaps would be factious, nay, even revolutionary, not to acquiesce in it as a precedent.
But when, as is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful to treat it as not having yet quite established a settled doctrine for the country.
This statement provides more information about Lincoln’s view. First, it is clear that he believes that some individual precedents, depending on the circumstances, should be followed. Second, the italicized portion of the quote suggests that he believes that a series of decisions over time, even if lacking some of the other favorable indicia he mentions, would be binding. This suggests that the reading of Lincoln’s inaugural that I previously offered may have been correct.
Of course, that Lincoln said it does not mean it is correct, as a matter of law or morality at the time (although some people seem to act as if it does). But Lincoln was a very smart and experienced lawyer and his statements tell us something about the law in the middle of the 19th Century.
Update: I made some changes to this post to more accurately represent the effect of Lincoln’s statement on the question of the bindingness of a series of precedents.