Josh Blackman: The Supremacy Sham?

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?

“Oh yeah? Make me.”

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?

45 thoughts on “Josh Blackman: The Supremacy Sham?

  1. Keith

    My understanding is that unless you have a class action, the result of a particular declaratory judgment action is binding on the parties.

    If that’s the case, why wouldn’t a decision like, for example, the Hollingsworth (Prop 8) decision only apply to the particular clerk in that particular CA County as opposed to all of the State or even the nation (especially since it was sent back down and left the lower court ruling).

    I appreciate Josh’s view on this topic (which he’s been building for a while. It may lead to chaos, but only because we built a house on a (possibly) faulty foundation.

    Looking forward to this new paper.

    1. SHG Post author

      The paper is linked in the post, and your “understanding” completely misses his point by a few million miles. Read the paper (or just this post), have a cup of coffee and then make your act of contrition.

        1. SHG Post author

          I knew you would. My daughter made me stop at Starbucks yesterday, so I decided to order a beverage for myself even though I’m not a fan of their brew. I asked for a mochachocha frappilatte with extra soy. They gave me a medium coffee. They understood me.

      1. Casual Lurker

        “…then make your act of contrition”.

        “Ohhh… now I see it”.

        And here I thought it was going to be more like…

        “Bless me Father, for I have sinned. Before I start, this is my attorney, Mr. Greenfield…”

        Re: Starbucks…

        “I asked for a mochachocha frappilatte with extra soy”.

        And, no doubt, paid through the nose for it. You should have taken Gamso’s advice, gotten the AARP card, then also had the free donut at Dunkin’.

        1. SHG Post author

          It cost about $2.50, but since I was already paying for my daughter’s vanilla something, it came out to $11 and change.

  2. Billy Bob

    Too young to know much of anything. Too clean-shaven. Not my kinda guy.
    Other than that, pretty impressive CV. We see a great future ahead. Perhaps he too could become a S.C. justice. Stranger things have happened. Wouldn’t that be a gas?

  3. B. McLeod

    They do amend the constitution at will, they just pretend that the new version is what it always said.

    1. RAFIV

      Once again I applaud either your genius or madness. I, for one, am not smart enough to tell the difference. Curiously, this qualifies me to be a law professor.

      1. John Barleycorn

        Cheers RAFIV! Citius, altius, forties….

        Could be the back pages of SJ is the only place left that may prevent the first AI chips from being implanted into the koi fish hypothalamus of potential Supremes as condition of the condition.

        Mind you, If this isn’t already true…,. the beer, and peanuts will never be the same even “compared” to “today”.

        BTW, If I were to speak of the “genius” it takes to ricochet foisted “madness” off our esteemed host’s delete button your ambiguity would put all your freshmen in Gerry Spence leather.

        Anyway, if you were not aware….Think “Field Trips” to the ball park this spring. Someone in the front office is still giving away the cheap seats, ya’ know…. Get ‘um while they last and are still honored at the gates.

        P.S. Spring, steps, and all that the news is worth, says our esteemed host makes a habit of dusting off his third drawer of wrist watches on the first day of spring every year.

        Could be that this task pulls him into a cordwainer’s shop in a few weeks.
        I wonder if we can expect more posts like this, this summer, after that visit?

        Tom Jones covering Dr. John? (Mr. Rebennack himself might even get it)

  4. Billy Bob

    It occurs to me that Josh could come on here and say something himself? You know, “from the horse’s mouth.” Am sure he’s gotten wind of this posting, if he’s still breathing! He’s expressing in legalese what some of us have been thinking for a long time, but unable to express in any language other than Jacksonian diatribe. Prez Andrew Jackson, that is; not Justice Jackson of mid-20th C. S.C. fame.

    Like you intimate, if Josh’s revolutionary thinking should ever come to fruition, it could throw a monkey wrench into the whole S.C. reign of terror we’ve been living under for 200 years. It’s a farce. It was always a farce. It continues to be a farce, in spite of all those books written by guys named Jeffrey and the talking heads we know so well. This is one of those postings which sticks with you for dayz. Congrats and thanx for keeping the loyal readership informed and up to date.

  5. Justin

    I’ve always thought we need a constitutional amendment clarifying the role and scope of SCOTUS and the lower courts as well. I don’t think politically-motivated actors should be able to use the courts to enact legislation they don’t have the political capital to pass legislatively.

    1. SHG Post author

      One of the curiosities of a tripartite system of government is how one branch picks up the slack of another when they fail to act. Not that they should, but they do. People who favor the outcome think it’s swell, until tides turn and it’s used against them, in which case it’s wrong and terrible.

      As dysfunction takes hold, circumvention of one branch’s function by another may be more understandable, but swords cut both ways. Will a constitutional amendment fix it or just give rise to a new mechanisms to avoid the consequences of dysfunction?

      1. Justin

        I guess it would depend on the precise wording. I guess the big idea would be that while the courts generally, and SCOTUS particularly, interpret the Constitution, their role is not to play parent to the other two branches, nor is it to break a tie because a measure has legislative support, but the executive doesn’t support it; or, the executive supports a measure but doesn’t have the votes to see it passed by the legislature.

        Every one of our elected officials takes an oath to uphold the Constitution; there’s nothing special about the Justices’ oath. If we understand the executive and legislature can be partisan and politically motivated, why do we think judges are exempt?

  6. PseudonymousKid

    Dear Papa,

    So what if the Supremes aren’t so supreme? Even without universality and supremacy, its decisions bind all lower courts, allowing for additional cases and controversies than the narrow few it actually decides. Blackman’s argument is persuasive, but what does it matter in the end? It proves Blackman is a creative thinker and persuasive writer. Good for him.

    Maybe some other prof can cite to his paper now. Academia is so inspiring. Though his view would require more cases be filed, which would be a boon to a certain subset of attorneys. Hm. Maybe I am inspired.


    1. SHG Post author

      Just did a quick word search on the Constitution for “binding precedent” and nothing came up. Where did I go wrong?

      1. PseudonymousKid

        True that. Let’s go back in time to 1803 or maybe even further. At some point the answer to why we do things the way we do is that we’ve done it that way before. God bless common law.

        1. SHG Post author

          A phrase I use often is “remember the rubric, forget the rationale.” There is usually a good reason why something becomes a norm, but it often takes on a life of its own, such that we persist in applying the norm even when it no longer makes sense. It’s good to revisit our norms every once in a while just to make sure they’re still serving their purpose.

          1. PseudonymousKid

            “Binding precedent” would be one of those that seems well-founded, but maybe we’re just waiting for someone to show us how we’re wrong.

            Supremes: “Judgment Reversed, case remanded to lower court for additional proceedings”
            Appellate Court: “Na. We said we were done.”

            1. SHG Post author

              Think of all those poor schmucks between Mistretta and Booker who got life plus cancer because a grid said so.

            2. SHG Post author

              The common law was great, until we started screwing with it by enacting a Constitution and (shudder) statutes, and screwed it all up.

        2. Daniel Messing

          Bentham had a different view of the common law:
          Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do -they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law? Only by watching their proceedings: by observing in what cases they have hanged a man, in what cases they have sent him to jail, in what cases they have seized his goods, and so forth. These proceedings they won’t publish themselves, and if anybody else publishes them, it is what they call a contempt of court, and a man may be sent to jail for it.

          1. SHG Post author

            Rather than a long Bentham quote, you might want to consider expressing a thought, and tying it into a point that might be of interest to someone. Just sayin’.

        3. Casual Lurker

          “At some point the answer to why we do things the way we do is that we’ve done it that way before”.

          That idea is often referred to as “Pavlov’s Theory of Bureaucracy”* (a/k/a “Pavlov’s Monkeys” — he did far more than just the classical conditioning experiments with dogs). If you’re not already familiar with this classic psych experiment, Google it.**

          But, briefly, after all of the original monkeys have been replaced, when a new monkey is introduced, and attempts to go up a ladder and grab a banana, all the other monkeys, having no historical knowledge as to why it is (or was) necessary, pull him down and beat the crap out of him.

          If any of the assaulting monkeys could talk, and were asked why the newcomer’s actions required a punitive response, the only answer they could give would be “because that’s the way it has always been done”. (Most Unions operate on that very principle. ;-))

          The scary part is humans behave identically, will rationalize away any inconsistencies, and actively resist any attempt to modify their behavior, even when they logically know the behavior no longer applies and is therefore no longer rational. (Or, as your Papa more succinctly said, “…such that we persist in applying the norm even when it no longer makes sense”).

          *Not to be confused with Max Weber’s “Theory of Bureaucracy”.

          **Note that most explanations on the internet leave out most (if not all) of the controls/technical details, including the need to start with several hundred subjects, to weed out those suffering from various physical and mental pathologies, preventing them from becoming part of a social group of typically between 25 and 35 members.

  7. Joseph

    What bodies would have the authority to decide whether any given Supreme Court ruling has actually “overcome the words of the Constitution”? If lower courts would be allowed to review these de novo, it seems as though there would be little to stop an elected judge from simply ejecting Brady from his court on the grounds that the Supremes got the Constitution wrong, and ignoring all higher directives other than those individually pertaining to cases remanded to his court.

    1. SHG Post author

      That’s a problem, but since when did faithful application of the Constitution mean that it came without problems?

      1. Joseph

        In every case, someone gets the last word on Constitutional interpretation. That someone is a judge or a panel of judges charged with faithfully upholding the Constitution. If that last word is issued by one court on a thousand cases rather than by a thousand courts on a thousand cases, it does not necessarily mean the Constitution has not been faithfully applied.

        Blackman argues that the binding-Supreme-Court-precedent is not a “constitutional rule” in part because the Constitution does not dictate it. But it doesn’t appear to immediately follow that thus such a rule is thus unconstitutional or cannot be legal doctrine. The possibility seems to be left open that both the every-court-for-itself and the binding-Supreme-Court-precedent models could simply be different methods of applying the Constitution.

            1. SHG Post author

              Not my job to translate fairly obvious ideas into smaller words to accommodate the grasp of every reader, Joseph.

  8. Ingot9455

    The Ninth Circuit uses this rationale all the time.
    They go against Supreme Court precedent and pretty much say, “I dare you to reverse me.”
    At the very least they know their ruling is likely to stand for a few years because emergency injunctions are rare. The Supremes don’t pick up every dumb case from the Ninth Circuit because if they did nothing would get done; so some get through. And since they outnumber the Supremes, they pile on more dumb cases than the Supremes will ever have time to get to.

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