Marbury and Miranda
Here's a thought inspired by the fact that I'm teaching Marbury v. Madison in my federal courts class today: Much recent scholarship in the vein of popular constitutionalism, especially Larry Kramer's The People Themselves, makes the point that in its day, Marbury v. Madison was not the manifesto of judicial supremacy that it has since become. Kramer and others argue that John Marshall's point in Marbury was that the courts were not uniquely disqualified from making constitutional judgments; Kramer says that Marshall did not intend to say that the courts were uniquely qualified to make such judgments.
I'm not entirely convinced by Kramer (although I have sympathy for the view that political actors have an important role to play in filling out the meaning of the Constitution, as Barry Friedman and I argued in an article called Shared Constitutional Interpretation some years ago). But let's set that aside. Here I want to suggest that even if one buys Kramer's historical argument, Marbury may have legitimately BECOME a precedent for judicial supremacy because it has come to stand for that proposition in the public imagination. To the extent that the public have any views at all about the Constitution (and surveys repeatedly show that most people haven't a clue), they tend to treat Marbury as standing for the proposition that the Supreme Court has the final say about what the Constitution means. In light of that fact, for the Supreme Court, or worse, Congress or the President, to reassert the supposed original version of Marbury would be widely perceived as an assault on not just the Court, but the Constitution itself.
Something like this phenomenon occurred when, in 2000, the Supreme Court reaffirmed Miranda v. Arizona, holding that it was "a constitutional decision" that Congress could not change. Even though Miranda contained language that could plausibly be read to permit Congress to displace its requirement of warnings, the Court, including former Chief Justice Rehnquist, who had formerly criticized Miranda, understood that to rely on that language would be to miss what Miranda had become in the public imagination: namely, a precedent for the requirement of regularity and the rule of law in police practice. The Chief's actual opinion in Dickerson (the case that reaffirmed Miranda) had a variety of technical defects, but it correctly captured this "public" dimension of the case. Kramer and some of the other popular constitutionalists, I think, overlook such symbolic aspects of Supreme Court decisions in their call for a return to the original version of Marbury.
I'm not entirely convinced by Kramer (although I have sympathy for the view that political actors have an important role to play in filling out the meaning of the Constitution, as Barry Friedman and I argued in an article called Shared Constitutional Interpretation some years ago). But let's set that aside. Here I want to suggest that even if one buys Kramer's historical argument, Marbury may have legitimately BECOME a precedent for judicial supremacy because it has come to stand for that proposition in the public imagination. To the extent that the public have any views at all about the Constitution (and surveys repeatedly show that most people haven't a clue), they tend to treat Marbury as standing for the proposition that the Supreme Court has the final say about what the Constitution means. In light of that fact, for the Supreme Court, or worse, Congress or the President, to reassert the supposed original version of Marbury would be widely perceived as an assault on not just the Court, but the Constitution itself.
Something like this phenomenon occurred when, in 2000, the Supreme Court reaffirmed Miranda v. Arizona, holding that it was "a constitutional decision" that Congress could not change. Even though Miranda contained language that could plausibly be read to permit Congress to displace its requirement of warnings, the Court, including former Chief Justice Rehnquist, who had formerly criticized Miranda, understood that to rely on that language would be to miss what Miranda had become in the public imagination: namely, a precedent for the requirement of regularity and the rule of law in police practice. The Chief's actual opinion in Dickerson (the case that reaffirmed Miranda) had a variety of technical defects, but it correctly captured this "public" dimension of the case. Kramer and some of the other popular constitutionalists, I think, overlook such symbolic aspects of Supreme Court decisions in their call for a return to the original version of Marbury.
posted by Michael C. Dorf @ 7:03 AM
8 Comments:
At 9:26 AM,
Marty Lederman said…
The interesting question is when this shift occurred, and why. It's probably traceable to Cooper v. Aaron, even though in that case all the Court was really saying (at most) was that intransigence by state (not federal) actors in the teeth of a recent SCOTUS precedent was a breach of constitutional etiquette, at least where it was clear that the injured party would prevail if and when the dispute reached the Surpeme Court.
By the time the Meese Tulane speech and Boerne rolled around, I think it's fair to say that most lawyers and law students basically had bought into the judicial interpretive supremacy model.
But it was hard to find academics who would have agreed. Certainly the consensus was, at the very least, in favor of the Brennan "one-way ratchet" in Katzenbach. And perhaps even more: Witness the Georgetown Law Journal exchange between Paulsen, Levinson and Eisgruber on departmentalism, in which Paulsen is surprised that no one much resists his claim.
I suspect that, among academics, the most one could say pre-Boerne was that everyone saw something fishy in the political branches acting contrary to a Supreme Court precedent *in a case where it was clear that the Court's view would continue to prevail.* And even that is not so clear: Was there opposition to FDR and Congress continuing to enact statutes in the teeth of pre-1937 SCOTUS invalidations?
The negative public reaction to the Meese speech was likely premised on the (not unreasonable) assumption that the speech was intended to invite *rights-suppressive* conduct by state actors even in cases (e.g., school prayer) where it was clear the Court would invalidate. In other words, Cooper-like cases.
Yes, of course the other branches were equally qualified to interpret the Constitution. But what would be the point of *acting* upon that interpretation to impinge upon rights if the Court's view would ultimately govern the case?
Another factor to consider: At some point, the idea that the Executive branch and Congress engage in *principled* constitutional interpretation and debate (as opposed to post-hoc justifications in support of policy preferences) became something of a joke. A widespread assumption developed, perhaps spurred by the prevalence of public choice notions, that the President and members of Congress do not take their constitutional oaths seriously -- except when it's convenient to do so. I'd be curious to learn when that sea-change occurred, and why.
At 4:25 PM,
Michael C. Dorf said…
A propos of Marty's comment, here's a personal anecdote. After South Dakota passed its restrictive abortion law (but before the voters repealed it by referendum) I wrote a FindLaw column defending the right of the South Dakota legislature to enact legislation that was invalid under existing Supreme Court precedent but valid in the eyes of the legislators' own understanding of the Constitution. I cited both deparmentalist arguments and the practical point that without such an ability, test cases could never arise to challenge existing precedents. I received a flood of email denouncing me as a traitor to the Constitution. That doesn't answer Marty's timing question but it suggests that the shift has definitely occurred.
At 6:03 PM,
Thomas Healy said…
I think Mike is right that one reason a state legislature or Congress might want to pass a law directly contrary to a Supreme Court precedent is to test the strength of that precedent and to encourage the Court to overrule it. And we may think that's perfectly appropriate. But it raises the question of whether the Court should be influenced by such resistance when deciding whether to adhere to precedent? Put another way, should the Court show any deference to the views of non-judicial actors when conducting the stare decisis analysis of Casey?
I'm participating in a symposium at Notre Dame later this semester that will consider just that question. I'm still working out my answer, but one thing to consider is whether showing deference in such situations will invite increased defiance to Supreme Court decisions. If legislators think their resistance to a decision might lead to it being overturned, they would seem to have a strong incentive to pass a law that is directly contrary to it. Is that a bad thing? Well, it would certainly be messy and require the lower courts to spend at least some time striking down the laws. And it might undermine the authority of the Supreme Court by making it look even more subject to political influences than it already does. On the other hand, if you think the Court has become too powerful, this prospect might not be unwelcome.
If anyone has any thoughts on this question, I'd greatly appreciate them. As I say, I'm still working out my thoughts (i.e. I haven't started writing yet) and could use the feedback.
At 7:52 PM,
Sobek said…
"Put another way, should the Court show any deference to the views of non-judicial actors when conducting the stare decisis analysis of Casey?"
Why would it? The Court in Roe showed no deference to the vast majority of states, which had laws against or restricting abortion.
I think Marty is on-track about the sea-change. In my Con Law class I was struck by the amount of debate that went into the earliest legislation -- by the executive and legislative branches. Now, the relevant question is no longer "is this Constitutional?" but "can we get the Court to buy this?"
For that reason, although I think the Court is no longer the Least Dangerous Branch, I also wouldn't advocate the cold-turkey termination of judicial supremacy in judicial review -- I've lost all faith in the fundamental seriousness of the executive and legislative branches to restrain themselves. It seems the prevailing motto is "if I can get away with it, it's constitutional."
I would prefer a combined legislative/executive override power over Supreme Court determinations of unconstitutionality. Essentially the power of the President plus a super-majority of both houses, when the Supreme Court says "this is not constitutional," to say "yes it is."
At 10:53 PM,
David C. said…
It makes sense to me that in the murky world of separation of powers law, both the judicial and non-judicial branches would want to act aggressively to assert and protect their ability to have some authoritative role in interpreting the Constitution. But on the propriety, or desirability, of non-judicial actors defying Supreme Court precedent in order to generate test cases, I wonder if private individuals bear too many of the costs of a politically charged game of legal "chicken."
For example, suppose that the New York Times runs an expose on New York public assistance programs, revealing widespread fraud that goes undetected by the ALJs who adjudicate the cases. In response, New York decides to fall back on the pre-Goldberg system of terminations with only post-deprivation hearings. To the many critics of Goldberg, this would seem like as good an opportunity as any for the state to "invite" the Court to reconsider its oft-criticized decision. (Assume that some legal experts thought that the Court might weaken Goldberg , notwithstanding Hamdi's recent application of Mathews.) Although this would likely appeal to many as a fun, intriguing exercise in theorizing about judicial supremacy, the likely result is that, unless the law is challenged immediately and enjoined pending Supreme Court review, many New Yorkers will suffer. If the Supreme Court ultimately weakens Goldberg, then this is not a constitutional problem, just a policy one. But if the Supreme Court declines the invitation to overrule or cut back on its precedent, then private actors will needlessly have been deprived of their constitutional rights. Or, to use a less sympathetic example, if the federal government tries to reenact the state component of RFRA, local governments and local developers would be stuck in limbo, enduring untold expense and uncertainty as they await a reaffirmation of Boerne.
Professor Healy asks if it would be a bad thing to invite legislatures to voice their criticisms of Supreme Court precedent through contrary legislation. If by a resolution, maybe, or maybe not. But to pass and execute binding laws for the purpose of engaging in a battle of the wills with the Supreme Court, just to demonstrate how unpopular a past decision is, seems to erode the benefits of finality. Private actors will be frustrated in their attempts to self-apply the law, and those whose constitutional rights are being challenged will have to suffer temporary deprivations with little corresponding benefit to society.
As for the need for test cases, it seems like the Supreme Court can adequately signal its willingness to overturn a precedent without waiting for an identitical law/scheme/fact pattern to emerge as one it has previously declared unconstitutional. I don't think we believe that we have to wait for another Gun Free School Zones Act (without a jurisdictional component) in order for the Court to signal that the Federalism Revolution is over, and the return to a pre-Lopez world of near limitless federal power. And even in a narrow field like abortion, we can imagine a subtle footnote in *any* medical case that would send the appropriate signal to states that the door was open for reconsideration of, for example, the procedure in Stenberg v. Carhart.
As long as judicial supremacy/exclusivity is the law of the land, it seems to ask too much of affected interests to wait while legislatures and executives repeatedly challenge precedents they simply don't like, especially when those challenges might be politically popular, and thus all too frequent.
At 10:53 PM,
David C. said…
It makes sense to me that in the murky world of separation of powers law, both the judicial and non-judicial branches would want to act aggressively to assert and protect their ability to have some authoritative role in interpreting the Constitution. But on the propriety, or desirability, of non-judicial actors defying Supreme Court precedent in order to generate test cases, I wonder if private individuals bear too many of the costs of a politically charged game of legal "chicken."
For example, suppose that the New York Times runs an expose on New York public assistance programs, revealing widespread fraud that goes undetected by the ALJs who adjudicate the cases. In response, New York decides to fall back on the pre-Goldberg system of terminations with only post-deprivation hearings. To the many critics of Goldberg, this would seem like as good an opportunity as any for the state to "invite" the Court to reconsider its oft-criticized decision. (Assume that some legal experts thought that the Court might weaken Goldberg , notwithstanding Hamdi's recent application of Mathews.) Although this would likely appeal to many as a fun, intriguing exercise in theorizing about judicial supremacy, the likely result is that, unless the law is challenged immediately and enjoined pending Supreme Court review, many New Yorkers will suffer. If the Supreme Court ultimately weakens Goldberg, then this is not a constitutional problem, just a policy one. But if the Supreme Court declines the invitation to overrule or cut back on its precedent, then private actors will needlessly have been deprived of their constitutional rights. Or, to use a less sympathetic example, if the federal government tries to reenact the state component of RFRA, local governments and local developers would be stuck in limbo, enduring untold expense and uncertainty as they await a reaffirmation of Boerne.
Professor Healy asks if it would be a bad thing to invite legislatures to voice their criticisms of Supreme Court precedent through contrary legislation. If by a resolution, maybe, or maybe not. But to pass and execute binding laws for the purpose of engaging in a battle of the wills with the Supreme Court, just to demonstrate how unpopular a past decision is, seems to erode the benefits of finality. Private actors will be frustrated in their attempts to self-apply the law, and those whose constitutional rights are being challenged will have to suffer temporary deprivations with little corresponding benefit to society.
As for the need for test cases, it seems like the Supreme Court can adequately signal its willingness to overturn a precedent without waiting for an identitical law/scheme/fact pattern to emerge as one it has previously declared unconstitutional. I don't think we believe that we have to wait for another Gun Free School Zones Act (without a jurisdictional component) in order for the Court to signal that the Federalism Revolution is over, and the return to a pre-Lopez world of near limitless federal power. And even in a narrow field like abortion, we can imagine a subtle footnote in *any* medical case that would send the appropriate signal to states that the door was open for reconsideration of, for example, the procedure in Stenberg v. Carhart.
As long as judicial supremacy/exclusivity is the law of the land, it seems to ask too much of affected interests to wait while legislatures and executives repeatedly challenge precedents they simply don't like, especially when those challenges might be politically popular, and thus all too frequent.
At 10:23 AM,
egarber said…
>> Mdorf said: Here I want to suggest that even if one buys Kramer's historical argument, Marbury may have legitimately BECOME a precedent for judicial supremacy because it has come to stand for that proposition in the public imagination.
As far as justiciability goes, that can cut the other way too, no?
For example, it looks like Roberts might be trying to rule that Brown has come to stand for the proposition that all public policy is "colorblind", despite contrary scholarly analysis of what Brown really meant at the time.
In chatting with average folks from time to time, it seems common enough in the public mindset as well.
At 10:56 AM,
Thomas Healy said…
David -- I like your phrase "legal chicken." That's the game Arkansas officials were playing in Cooper, and I agree that it can have harmful effects.
As for your suggestion that Supreme Court justices might subtly indicate their willingness to consider a test case, one problem is gauging whether there is enough support on the court to make challenging a precedent worthwhile. Justice Thomas frequently -- and not so subtly -- indicates his willingness to reevaluate just about every precedent on the books. And justices in the dissent often predict that their views will eventually carry the day. But I'm not sure I'd like to see legislatures defy precedent on the basis of those predictions alone.
Perhaps Stenberg v. Carhart is an example of a case that the political branches were justified in challenging. It was a 5-4 decision with a separate concurrence from Justice O'Connor, who indicated her willingness to uphold a similar law with a life and health exception. The challenge might have been even more justified had Congress passed the law after O'Connor retired and was replaced by Justice Alito. In that situation, Congress would have had good reason to think the Court might reconsider Carhart.
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