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Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


Lincoln didn't want Dred Scott v. Sandford to right away to be established as the law of the land on a permanent basis. Especially a broad reading.

He argued, e.g., at Cooper Union that it had an incorrect understanding of history. He also argued parts of it was dicta. That, in time, the errors will be realized.

Roe v. Wade and Casey is not the same thing. The comparison to me is rather specious. Each has been the law for a long period of time, with a lot of water under the bridge.

I don't think Lincoln would be appalled. It brings to mind Madison's stance on the national bank when the Second Bank was up for passage. He opposed aspects of it, but not the basic constitutionality. BY THEN, enough acceptance by a range of parties was shown.

About twenty years passed since the First Bank. Roe was decided 50 years ago.


I don't think Justice Sotomayor's dissent stands alone as to some sort of "judicial supremacy." You can cite Roberts too. He speaks of nullification. The members of the majority opinion as a whole probably also don't disagree with the basic principles at stake here. They are not departmentalists.

(I suppose some debate can be had, but one or more surely are not.)

I also question if only "judicial" supremacy is at issue. The wider concern is appropriate application of constitutional text as a whole.

Sotomayor cites Calhoun's belief that states could veto any FEDERAL LAW. This need not be a matter of court opinion. It could be the Congress or the executive involved.

"Federally protected rights" (her language) can involve 14A, sec. 5 congressional laws. A state law can clash with that and "evade review" by SB8 tactics.

Posted by: Joe | Dec 11, 2021 8:21:27 PM

Lincoln's position was indeed more brazen. From his first inaugural:

"At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln politely called it resigning government into the hands of that eminent tribunal. Josh calls if Judicial Supremacy. Because of the lack of checks and balances from either the executive or legislative branches, the late professor William Quirk called it Judicial Dictatorship.

Will the veil (or wool) fall from the public's eyes?

Posted by: Ojibwe Jim | Dec 11, 2021 1:14:19 PM

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