Nelson Lund has a reply to Mitchell, titled Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court’s Errors:
Originalism has had an uneasy relationship with stare decisis, but the two seem wedded in a way that precludes divorce and thus encourages adultery. Almost all originalists have decided, on pragmatic grounds, that the Supreme Court’s constitutional infidelities must sometimes be allowed to mature into de facto constitutional amendments. Writing in the Michigan Law Review, Jonathan Mitchell has proposed a new theory — based solely on the text of the Supremacy Clause rather than on pragmatic considerations — that purports to identify which interpretive infidelities must be rejected and which may be allowed to continue indefinitely.
According to this theory, it is unconstitutional for the Supreme Court to rely on stare decisis when, and only when, its precedents (a form of nonsupreme law) conflict with one of the three forms of supreme law identified in the Supremacy Clause. Accordingly, erroneous constitutional precedents may never be relied on to strike down a federal statute or to uphold a state law that conflicts with the supreme law of the land. Conversely, erroneous constitutional precedents may be relied on to uphold a federal statute or to strike down a state law.
Mitchell’s argument overstates the implications of the use of the word “supreme” in the Supremacy Clause, and it overlooks the principal purpose of the Clause. The better reading is that the Clause was meant to establish both the supremacy of federal law over state law and the obligation of state courts to respect that principle. The Supremacy Clause is simply silent about the Supreme Court’s duty when its precedents conflict with the original meaning of the Constitution.
Mitchell is right, however, to emphasize that the Supremacy Clause implicitly rejects the notion that Supreme Court opinions can be the supreme law of the land. Because the Clause is directed primarily at commanding state courts to follow the supreme law when it conflicts with a nonsupreme law, a reasonable inference is that state courts are not bound by erroneous Supreme Court opinions. If state supreme courts were to take that inference seriously, we might see a healthy intellectual competition between them and their federal counterpart. If all these contestants were to begin taking the Constitution more seriously than they do now, the nation could be the ultimate winner.
I’ll need to read Lund’s article when I get some time.
On an aside, I am glad to see the GMU Law Review has published an article by a GMU Prof. A brief bit of history to explain. When Henry Manne was Dean of GMU in the 1990s, he sought to transform the GMU Law Review from a student-edited journal to a faculty-run peer-review journal. The students rebelled, and started what was known as the George Mason Independent Law Review. They actually published a few editions under this name (of course, Judge Boggs has them in his chambers). Eventually, the George Mason Law Review returned to student control. Yet, there was a lingering fear that the faculty would try, again, to take over the journal. As a result, a norm existed that Professors at GMU could not be considered for publication at the Law Review. I thought this policy was absurd, and a severe over-reaction to what was really a bizarre situation. One of my favorite GMU Profs offered a piece to the Law Review. I fought for it. I lost. Anyway, I’m glad to see Lund got it in.
Update: It seems Lund’s response was part of the George Mason Law Review’s judicial engagement seminar. You really wouldn’t know it, as the article only superficially discusses judicial engagement. But anyway, that explains, perhaps, why GMULR took a GMU’s Prof’s article.
Mike Rappaport has a good summary of Mitchell’s argument (much better than mine).
Update 2: Rappaport has a reply here.