Jonathan Mitchell, my former Professor, and current Solicitor General of the Republic of Texas engages this interesting question in a new article in the Michigan Law Review titled Stare Decisis and Constitutional Text. Here is the argument in a nutshell. The Supremacy Clause says federal law, and the Constitution are Supreme Law. Stare Decisis sometimes counsels following precedents, even if the earlier court messed up, out of prudential concerns. So it seems to some that the doctrine of stare decisis is in tension with the text of the Supremacy Clause. Mitchell disagrees, and argues that in some contexts, the Supremacy Clause counsels stare decisis. He splits the analysis, separating challenges to a law as violative of the U.S. Constitution, and as violative of an Act of Congress.
But the major premise of this argument is wrong on textual grounds; the written Constitution does not require the Supreme Court to invalidate every federal statute that contravenes the Constitution. Instead, the document gives the Justices latitude in deciding whether and when to invoke their implied power to review the constitutionality of con- gressional acts.
To begin, Article VI designates federal statutes as “supreme” law, so long as they are enacted “in Pursuance” of the Constitution.12 This “in Pur- suance” caveat is most plausibly read to confer supremacy on all statutes that survive the bicameralism-and-presentment hurdles established in Arti- cle I, Section7.13 When the “supreme” Constitution conflicts with a “supreme” federal statute, a textualist Justice must adopt a tiebreaking strat- egy, and there is nothing wrong with invoking an accepted practice such as stare decisis to break this deadlock in favor of congressional legislation.
This seems prudential, not compelled by the text.
Even for those who believe that “in Pursuance thereof” requires federal stat- utes to comport with the Constitution’s substantive constraints on federal power, it still does not follow that the Supreme Court’s interpretations of the Constitution must always trump contrary interpretations adopted by the national political branches. Instead, the Supreme Court may allocate final interpretive authority over the Constitution in a manner that respects its in- stitutional rivals as coordinate branches of the federal government—just as the executive branch does when it decides to enforce federal statutes and court judgments that the President considers repugnant to the Constitution. When the Justices invoke stare decisis to uphold federal statutes against constitutional challenge, this is tantamount to a decision that allocates final interpretive authority over a constitutional question to the national political branches rather than the courts.
I’m not quite sure if I get this turn, and why invoking stare decisis is “tantamount” to deferring to a political branch. Because when the political branch passed the law they were relying on an erroneous understanding of the Constitution, and courts should defer to that? How is deferring to an older Supreme Court opinion the same thing as deferring to another branch of government? It seems that this approach is at heart judicial minimalism/deference in stare decisis’ clothes, camouflaged by a curious reading of the Supremacy Clause, which conforms with what I’ve read in other of Mitchell’s work. I’m not following.
Of course, Marbury v. Madison14 asserts that federal statutes are “supreme” only when they comport with the Supreme Court’s exposition of Congress’s substantive powers, and many take that decision to establish that the Justices are duty-bound to disregard Acts of Congress that they deem repugnant to the Constitution. But the written Con- stitution does not compel that approach, and one cannot attack the constitutionality of stare decisis by assuming the correctness of a Supreme Court precedent—even a canonical one like Marbury.
When in doubt, say Marbury was wrong. I suppose if we can Rehabilitate Lochner we can Debilitate Marbury? I think this argument is probably sound as a prudential matter. The Constitution does not compel Marbury, but I’m not sure Mitchell’s approach is any better or worse than Marshall’s.
In all events, the Su- preme Court has established many exceptions to the Marburyprinciple, such as non-justiciability doctrines, the political-questions doctrine, the pre- sumption of constitutionality, and rulings that rely on the “political safeguards of federalism.” Stare decisis is merely another example of the Justices respecting federal statutes as the final resolution of a constitutional question, and these rulings do not violate the written Constitution, nor do they violate textualist interpretive principles—even if they create tension with the (non-supreme) Marbury opinion.
Yes, this seems to be the crux. Stare decisis equates to deference to Congress’ determination of constitutionality viz judicial minimalism.
Next, Mitchell turns to challenges to laws as violative of an Act of Congress.
The analysis changes when stare decisis leads the Justices to invalidate an Act of Congress. When a federal statute both survives the bicameralism- and-presentment process and complies with the Constitution’s substantive provisions, it becomes “the supreme Law of the Land,” and the supremacy clause precludes the Justices from voting to invalidate that statute solely on the ground that it conflicts with an earlier-decided Supreme Court prece- dent. Using stare decisis in these situations would elevate a non-supreme rule of decision (judicial precedent) over the supreme law of the land (a constitutional federal statute), violating the hierarchy established in Article VI’s supremacy clause. So the textualists’ supremacy-clause objections to stare decisis are partly right. The supremacy clause does not preclude textu- alist Supreme Court Justices from ever applying stare decisis; rather, it permits an asymmetrical regime that constrains their ability to use precedent when invalidating an Act of Congress, but leaves them free to invoke stare decisis considerations in cases that uphold federal statutes against constitu- tional challenge.
That is indeed an asymmetrical regime. Courts are free to follow previous erroneous interpretations for constitutional challenges, but are constrained from following previous erroneous interpretation for statutory challenges.
The article also goes into federal common law, Erie, and a challenges of state law, but my main interest is in the bifurcation of challenges for purposes of invoking stare decisis.
Update: I apologize, as I think I misstated a few of Mitchell’s points.
First, he does not argue that Marbury was wrongly decided. On page 30 of his article, he stated just that:
None of this implies that the Constitution categorically forbids judicial review of federal statutes, nor does it mean that Marbury was wrongly decided.
My point above was based on my reading of Marbury. As I read Marbury (and perhaps my reading is flawed), Marshall wrote that his understanding of judicial review was in fact compelled by the text of the Constitution. Mitchell writes that Marshall’s view in Marbury is not compelled by the text of the Constitution and the Supremacy Clause. Even though Mitchell did not write that Marbury was wrongly decided, I presumed that he views Marshall as incorrect on this point alone–that the Constitution compels Marbury. This is what i was referring to. I apologize if my statement suggested that Mitchell wrote that Marbury was wrongly decided. This is not the case.
Second, I wrote that “He splits the analysis, separating challenges to a law as violative of the U.S. Constitution, and as violative of an Act of Congress.” I fear that this sentence was based on a hasty read of a sophisticated article, as the paragraph quoted below that sentence (and the passages I emphasized) seemed to suggest a different standard for these two types of challenges. On a closer reading, I realize that this point, and related analyses, is incorrect.
This is a very interesting article that raises a number of deep issues (issues that I need to consider a bit more). Highly recommended.