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Thursday, October 04, 2018

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


This post should be titled "Wasserman Wishes Slate Discovered Departmentalism." As you noted, Stern did not distinguish between ignoring a court order and ignoring precedent. What he did describe was anarchy. And for what? Why would the Court be "illegitimate?" Because it would "roll back decades of progressive jurisprudence." Because Democrats won't like the results, Stern is predicting (hoping?) they ignore the Court.

How could a law professor read this without calling it out in the strongest way?

Posted by: Biff | Oct 5, 2018 10:41:57 AM

Interesting , but the mere ideological resistance to rulings of supreme court , doesn't in no way , render it : " Constitutional crisis " or even using so wrongly the wording" illegitimacy " .

How exactly the appointment of conservative judge , and even : 5 V.4 for conservatism , would render according to the respectable author of the related article , the rulings illegitimate ? For it seems , that he uses fundamentally wrong terminology . The court is the same court , rulings are legitimate in accordance with every legal and constitutional parameter .

In order to use such terminology ( constitutional crisis , or rather illegitimacy ) we need " prima facie " ( on the face of it ) to have something wrong . But , Fundamentally wrong . Like :

By passing , circumventing the constitution , and appointing a judge , without confirmation hearing in the Senate . Is it the case here ?? Even somehow close to it ??

So, the court and its rulings , can't become so far illegitimate . And the mere right to oppose it ( ideologically ) doesn't color it even , as illegitimate .


Posted by: El roam | Oct 5, 2018 6:29:25 AM

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