In DIRECTV, Inc. v. Imburgia (not Imbruglia), Justice Breyer writes the majority opinion reversing the California Court of Appeals’s apparent flouting of AT&T Mobility LLC v. Concepcion. Concepcion was a 5-4 decision, with Justice Breyer in dissent–but that dissent is not perpetual.
No one denies that lower courts must follow this Court’s holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” Howlett v. Rose, 496 U. S. 356, 371 (1990); cf. Khan v. State Oil Co., 93 F. 3d 1358, 1363–1364 (CA7 1996), vacated, 522 U. S. 3 (1997). The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”).
It is certainly true that the FAA is the “supreme law of the land,” but it does not necessarily follow from the Supremacy Clause by itself that Concepcion is–although it is certainly “an authoritative interpretation of that Act.”
The Article VI Supremacy clause states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Supremacy Clause certainly binds state judges by the laws of the United States (although, as saw in Printz, it cannot bind state executive branch officers). But it does not, by its text, bind state courts to the judgments of the United States Supreme Court. But wait, you ask, aren’t the decisions of five out of nine Justices the supreme law of the land? The Constitution does not say that the Supreme Court has a monopoly on deciding how to interpret the laws of the United States, let alone the Constitution. Contrary to common misconception, that principle was not announced by Chief Justice Marshall in Marbury v. Madison, but was stated in Cooper v. Aaaron.
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.”
The per curiam Cooper Court announced the proposition that the judgments of the Court are the “Supreme Law of the Land,” not the Constitutional Convention of 1787, or Chief Justice Marshall.
Justice Breyer should have cited Cooper v. Aaron for that proposition, rather than Aricle VI alone, which cannot by itself support his conclusion.