Do You Believe in the Judicial Supremacy of Dead Justices?

Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?

As it happens, that would be a fair way of characterizing the views of anyone who is both a judicial supremacist and also supports a rigid form of stare decisis. For the judicial supremacist, the Constitution means for everyone whatever the Supreme Court says it means. And for the adherent to a rigid form of stare decisis, Supreme Court decisions about the Constitution are rarely to be overruled. Put the two together and you have “the judicial supremacy of dead justices.”

The two ideas don’t have to go together. One version of judicial supremacy would make stare decisis unnecessary. If the Constitution means whatever the Supreme Court says it means, then the Constitution means what the Supreme Court says. Having authoritatively said once what the Constitution means, there is no standard external to what the Supreme Court said to later show the Court to have been wrong earlier. But nobody really believes that, do they?

Here’s where one form of living constitutionalism might creep in. If the Constitution changes without formal amendments, then it’s possible that an earlier decision was right when decided but should nevertheless be overruled later on because the Constitution “evolved” in the interim. But nobody really seems to argue that way either, at least in court. It’s still too weird (thank goodness) for lawyers to make an explicit argument of this sort to tribunals that are supposed to discover rather than invent the law.

Reasoning aimed at overturning an erroneous precedent is usually trained instead on showing that the earlier decision was wrong the day it was decided. When successful, this results in decisions that renounce the judicial supremacy of dead (and sometimes living) justices.

Wouldn’t it be nice if we had a clean way to talk about and think about judge-made constitutional law that is subject to being overruled without formal amendment but that nonetheless remains binding on lower-court judges and must be reckoned with by anyone who might end up in court? Wouldn’t it be helpful to recognize just how different that law is from the law of the Constitution itself? It is questions like these that led me to write Judicial Departmentalism: An Introduction. (Draft is posted to SSRN; final version still being edited, forthcoming next year in the William & Mary Law Review issue for a symposium held earlier this year.)

The basic idea behind judicial departmentalism is that judicial resolutions give rise to a kind of law that binds within the judicial department but no further. The three ways judicial resolutions do this are through the law of judgments, the law of remedies, and the law of precedent. That’s it. Each of those bodies of law includes limits on its reach. Judgments typically bind only the parties; injunctions extend only to specific actors; and stare decisis governs only within the judiciary, for example.

Within the judicial department, this law is powerful. And by virtue of the many ways in which matters can be brought within the judicial domain, this law projects outward as a practical matter. But those not legally bound by this law (by virtue of a judgment, or a remedy, or stare decisis) violate no legal obligation in recognizing and acting as if they are not legally bound by it. After all, they aren’t.

Pretty neat, huh? Is it right?

Reader Discussion

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.

on December 15, 2016 at 10:15:36 am

"Judicial supremacy" is a misleading term for judicial equality: all three branches need to concur that a statute is constitutional and therefore "law" before it may justly be imposed on the citizenry (absent a congressional supermajority overriding presidential veto). if either Congress refrains or the president vetoes because they believe a measure is unconstitutional (don't laugh), then judges never get to say that measure IS constitutional. Judges only hear a case and controversy if other two branches think it is constitutional (or don't care). Last in time does not entail "supreme." The judges are simply the last safeguard standing between individual citizens and the ultra vires exercise of power by their agents or servants.

read full comment
Image of Randy Barnett
Randy Barnett
on December 15, 2016 at 10:38:26 am

That is all well and good (and quite correct insofar as it goes) but how would you characterize Administrative rulings, actions (I can't quite bring myself to call them law), determinations etc that a) posture as law and b) are often submitted to by an indifferent Legislative Branch (and the citizenry)

Here we have only one Branch asserting constitutionality.
Or is it that the Judiciary "just doesn't care"?

read full comment
Image of gabe
on December 15, 2016 at 10:59:14 am

I'm not sure what, if anything, there is in the post that should be taken to be misleading about its use of "judicial supremacy."

As standing for the idea that the Constitution means what the Supreme Court says it means, "judicial supremacy" is a pretty standard usage that describes the dicta from Cooper v. Aaron most commonly relied on for authority supporting it. (See the full paragraph containing the assertion: "[T]he interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.") That dicta was entirely unnecessary to the Supreme Court's disposition, which could have relied on pre-existing injunctive relief against the resisting officials.

Our differences are probably more terminological than substantive. In Restoring the Lost Constitution, Professor Barnett uses "judicial supremacy" in a non-standard sense as standing for the idea that the judicial power includes "the power to command or direct other branches and levels of government to conform to the judiciary's view of what the Constitution requires." (p. 144) As the post and my linked paper near the end indicate, I agree that the federal judiciary possesses this kind of power. I also think it helpful and important to distinguish between that power and "judicial supremacy" as it is most commonly used.

read full comment
Image of Kevin C. Walsh
Kevin C. Walsh
on December 15, 2016 at 11:31:15 am

Well said, I derive the same meaning primarily from these quotes:

"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

"[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without regard to what the others may have decided for themselves under a similar question." - --Thomas Jefferson

But I would also say each of the other branches has an ongoing obligation to stop unconstitutional acts. For at any time Congress can repeal any statute (including overriding the veto of the President), and the President can refuse to enforce any statute he believes is unconstitutional (and pardon all those previously convicted of the unconstitutional statute) as Thomas Jefferson did with the Alien and Sedition Acts. So while the judiciary might be the last to say it is constitutional, that is not the end of the story, any of the other two branches can change their mind.

read full comment
Image of Devin Watkins
Devin Watkins

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.