The Rule of Law, Judicial Review, and Judicial Supremacy

March 22nd, 2015

Kevin Walsh offers a thoughtful reply to my critique of Will Baude’s essay. In my article, I argue that it is inconsistent with the rule of law for the President to limit an adverse ruling in King v. Burwell to the named plaintiffs. Kevin questions which “particular rule of law that the Administration would be violating” if they adopted Will’s suggestion.

The short answer is that a core aspect of our rule of law is judicial review. When the federal courts (and not just the Supreme Court) issue a ruling, whether it is right or wrong, the other branches and the states should adhere to it, and not craft ingenuous evasion techniques. The failure to do so triggers what I described in my article as a “dangerous race to the bottom.” I didn’t think it would be controversial to rely on the fact that the supremacy of judicial review is a core aspect of our rule of law, but Kevin’s conclusion suggests I needed to say more.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court’s crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

Stephen Carter, who also defends Will, closes on a similar note:

The administration is unlikely to take Baude’s advice (even though some critics say it’s happened already), and I think the president’s counselors would be ill-advised even to consider it seriously. But that doesn’t mean Baude is outside the mainstream. Quite the contrary. With the institution of judicial review under assault in the law schools, it’s only a matter of time until doubts about the old-time consensus creep into public debate. And maybe that’s a conversation worth having.

When I read these, I thought “Huh?” The debate over judicial restraint versus judicial activism is older than I am. Of late, conservatives have taken to what is now dubbed “judicial engagements,” and liberals, smarting from a losing streak at One First Street, have turned to the values of passive virtue. Fine. I get that. But I didn’t realize that “the institution of judicial review” itself was “under assault in law schools.” I draw a huge distinction between disagreeing with specific Supreme Court decisions and questioning the validity on which judicial review stands. I thought the issue of judicial supremacy was conclusively settled by Cooper v. Aaron five decades ago, if not Marbury v. Madison two centuries ago.

Following Brown v. Board of Education, school districts did not voluntarily desegregate, but waited for one federal district court after another to issue an order against them, and resisted it the entire way. That was the essence of Cooper v. Aaron–the Supreme Court said that states could not engage in this chicanery. Consider other examples I raise in my essay:

While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.

I understand Will Baude’s point to be that the President, consistent with Cooper v. Aaron, could narrowly read a Supreme Court decision to limit relief to the named plaintiffs. But Carter and Walsh seem prepared to take it a bit further.

If these lessons are already being cast aside to history, and states and executive branch officials are openly considering forcing the lower courts to issue judgments in favor or every single harmed party, what I understood to be our rule of law is in trouble. Once courts are seen as obstacles to be vaulted over, rather than what Hamilton called in Federalist No. 78 “bulwarks of a limited Constitution against legislative encroachments,” we are in trouble. And that trouble is a heck of a lot greater than Obamacare or immigration, or any other social issue of the day.