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Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I would argue there is. In particular, vertical stare decisis is essential to keeping SCOTUS "supreme" within the judicial hierarchy over "inferior" tribunals.

Posted by: Howard Wasserman | May 24, 2016 12:34:21 PM

Is there any reason to believe courts have a duty to follow precedent, anymore than politicians?

Posted by: Jr | May 24, 2016 12:28:33 PM

Veto ... vagueness

Posted by: Joe | May 20, 2016 9:04:55 PM

It seems to me that is the puzzle at the heart of representative democracy--when and how far to do what your constituents want and when to do the "right" thing ("right" being defined many ways--by the need to focus on other priorities, recognition of the legal hopelessness of your position, by cost, etc.). I've written about the HBO movie "Show Me a Hero," which I think depicts this well--some people advocating fighting until the bitter end, others arguing the reality that there is nothing left to fight over, and the public favoring the former).

I did not mean to say that ignoring a judgment would be unconstitutional (at least not in the sense of violating the underlying right (e.g., the Fourteenth Amendment) but it would not be a permissible thing to do.

Posted by: Howard Wasserman | May 20, 2016 3:09:30 PM

"members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution"

If a law that establishes Catholicism as as state religion and bars Jews from public office will not be "unconstitutional" for the time being under the principle being expressed, it is unclear to me under the current theory why "only when they fail to follow a judgment rendered against them" necessarily follows.

Why would it be "unconstitutional" or a violation of "their oaths" to refuse to follow a direct judgment by the Supreme Court? The oath is to "this Constitution." Not "to federal officials" including federal judges. A judgment by the Supreme Court might be binding, it might be good law that applies to the parties. But, why is refusing to follow it "unconstitutional" as such?

I welcome the article and letter cited since it shows the problems of the bill without reaching somewhere that will result in unnecessary pushback. But, if we are going to talk about the other matter, this does make me wonder.

Posted by: Joe | May 20, 2016 1:07:05 PM

I am not an attorney, so perhaps it is inappropriate for me to respond to the question. However, let's say that the members of the Oklahoma legislature genuinely believe that the current Supreme Court precedent is inconsistent with the U.S. Constitution and the wishes of their constituents. Are they ethically obligated to fight the existing precedent until their constituents signal them to stop? Or are the morally obligated to direct their state's resources in another direction regardless of their constituents' wishes?

Posted by: HokieEngineer | May 20, 2016 12:33:56 PM

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