In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be. Let me remind the reader of two points from my prior posts: First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment. Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).
While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was. One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided. Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.
One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent. A single precedent did not appear to obligate a court to follow that precedent. Such a precedent needed to be considered, but it was not binding. Rather, it was a series of precedents that obligated a later court to follow the precedent. See here.
One might believe that the same principle applied to interbranch differences. And therefore the executive and legislature might be obligated to follow the judicial decisions only when there has been a series of decisions reaching the same result.
There is, moreover, a theoretical reason that one might believe that the same rule would apply for the bindingness of judicial precedents on courts and on the executive and legislative branches. When a series of decisions becomes binding on future courts, one might say that that series had come to be recognized as “the law.” Before the series had been completed, the judicial decisions were simply the views of a few courts. After the series, those decisions state the law. And as the law, it might make sense that it would be binding not merely on future courts, but also on the executive and the legislature.
While I have not investigated to what extent the executive and legislative branches were bound by a series of decisions, there is some mild support for this from a President who the departmentalists see as their champion: Abraham Lincoln. In his first inaugural, Lincoln wrote:
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.
This statement is not entirely clear, but it might mean that a single decision cannot bind the entire government, but that a series of decisions over time can.
This understanding of the bindingness of judicial precedents then represents something of an intermediate position between departmentalism and judicial supremacy. I consider it a type of judicial supremacy because a series of judicial decisions can bind the other branches, but it is a much weaker form than what exists today.
Ultimately, the right answer to this issue will turn on two matters that I have mentioned, but not sought to resolve fully: the practices at the time of the Framing and whether the obligation (or not) of the political branches to follow judicial precedents is a matter of constitution law or common law.’
It is also worth emphasizing one additional point. If the obligation of the executive and legislature to follow judicial precedents is a matter of constitutional law, then the practice at the time of the Constitution will be frozen into place. By contrast, if that obligation is a matter of common law, then it is possible that the obligation might have changed over time – as we now seem to assume that a single decision of the Supreme Court decides the matter and the Court will not accept cert simply to reiterate a previously decided issue.