Everyone knows that the Supreme Court is the ultimate arbiter of constitutionality, because it says so, right? Right?!? Badass lawprof Josh Blackman raises an intriguing argument that maybe this is one of those things that all lawyers know even though it may not be the case.
Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court’s judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme law of the Land.”
Second, Cooper asserted a principle this article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms.
Wait, what? If the Supreme Court says the First Amendment, which expressly states that “Congress shall make no law…abridging the freedom of speech,” but has categorical exceptions, which is the supreme? Is the agreement of five of nine justices sitting on the Court at any given moment more supreme than the words of the First Amendment itself? Do the
nine five have the power to effectively amend the Constitution at will? Josh argues they do not.
The principle of judicial supremacy can be encapsulated in a single sentence from Cooper: “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” Without qualification, whatever a majority of the Supreme Court holds is itself the “supreme law of the land.” If a different majority of the Court reaches a different holding, then that opposite conclusion becomes the “supreme law of the land.” Or, as Alexander Bickel framed it, “[w]hatever the Court lays down is right, even if it is wrong, because the Court and only the Court speaks in the name of the Constitution.”
The Cooper Court called this “basic” and “settled,” which is like the Court holding that the sun rises in the West and sets in the East. But is the Constitution the Supreme Law of the Land, or is it the Supreme Court’s interpretation of the Constitution?
But Josh isn’t done. Then there’s the problem he calls “judicial universality.”
Justice Stephen Breyer succinctly articulated the principle of judicial universality. “[T]he Court in Cooper,” he writes, “actually decided that the Constitution obligated other governmental institutions to follow the Court’s interpretations, not just in the particular case announcing those interpretations, but in similar cases as well.” In other words, state officials who were not party to Brown, were still bound to desegregate schools “in similar cases,” such as in Little Rock. Justice Breyer adds that were the Court to “hedge” on this point, segregationists would have had a “powerful legal and public relations weapon”— they could insist, in good faith, that they were only bound in a “single case” at a time, but not by the Supreme Court’s initial precedent.
There are parties before the Court, even the Supreme Court, and yet the ruling applies to a nation, even though you never got to argue why it shouldn’t apply to you? Where in the Constitution does it give the Supreme Court the power to bind everyone to its decisions rather than just the parties involved?
And if you take it a step further, where does the Constitution say lower courts are bound by Supreme Court precedent? Sure, it’s the norm, and every lawyer and judge knows it, because that’s what we’ve been telling ourselves forever.
While the Supreme Court enjoys infallibility based on finality, does that make its pronouncements sufficient to overcome the words of the Constitution? Does that makes its rules universal? Does Josh’s contention open up a can of worms that would throw the entire legal system into massive disarray? Maybe, but if the only basis for these “rules” is that the Supreme Court says so, is that good enough?