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Thursday, February 11, 2016

Judicial supremacy and professional responsibility

The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.

One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility.  In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is  "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.

On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.

Posted by Howard Wasserman on February 11, 2016 at 01:06 PM in Civil Procedure, Constitutional thoughts | Permalink

Comments

I'm curious about why you think there shouldn't be any question about SCOTUS supremacy within the judiciary. There is a school of thought among people like Gary Lawson that mindlessly following SCOTUS precedent is actually unconstitutional. I don't really agree with this and think it would cause a lot of practical problems—mostly unpredictability—but I don't think it's crazy

Posted by: Bill | Feb 12, 2016 10:12:27 AM

Jack: You're right about Rule 11 and about how Rule 11 should be applied. And that explains the "judicial" in judicial departmentalism. There should be no question about judicial supremacy within the judiciary--lower courts are bound by SCOTUS precedent and all attorneys, including public officials, must conduct themselves within judicial proceedings accordingly. Importantly, though Rule 11 only kicks in once something is submitted to the court. Outside of court, this form of departmentalism should play out differently.

Posted by: Howard Wasserman | Feb 11, 2016 7:55:11 PM

"One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere."

Another is Rule 11 (and similar rules at the state level). Rule 11 permits sanctions against attorneys who make arguments that are not "warranted by existing law." What is existing law? Is it whatever the Supreme Court says it is? Is it what the Constitution says? The Congress? What if OLC issues an opinion saying that a particular action was constitutional, as it did prior to DAPA? Why should an attorney, to avoid sanctions, be able to take cover in an Article III opinion but not in an Article I opinion?

Problems don't usually arise here because plaintiffs can usually take cover by claiming that that their claim presents a "nonfrivolous argument for extending, modifying or reversing existing law." Still, it'd be interesting to see how courts in Rule 11 cases define "existing law."

Finally, even with the above, it's not obvious to me that courts should be departmentalists in Rule 11 situations. Rule 11 is mainly about conserving judicial resources, and if Presidents Lincoln or Jackson were the trial judge in a case, I think it reasonable that they would chide the attorney for wasting their time. "We are departmentalists too," they might say, "but this not about departmentalism. This is about whether district courts must obey S.Ct. precedent. And that's an easy question."

Posted by: Jack Preis | Feb 11, 2016 7:19:17 PM

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