In a powerful new article, Jonathan Mitchell lays to rest one of the biggest myths on Constitutional Law: that the power of judicial review is akin to a veto, wherein the Court can “strike down” or render “void” a duly enacted statute. In The Writ-of-Erasure Fallacy, Mitchell states what should be an obvious fact:
But the federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.
This myth has real-world practical consequences. Howard Wasserman, my frequent co-author, highlights why the “myth” led the Supreme Court astray in Plessy v. Ferguson:
Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.
In other words, the Louisiana segregation law should have been preempted by the 1875 Civil Rights Act. However, the Plessy Court rejected that argument, based on the myth that the federal law was indeed “struck down.”
Randy and I added the following “draft” study guide question to the Fourth Edition of our casebook:
The Civil Rights Act of 1875 guaranteed “the full and equal enjoyment” of “public conveyances on land,” including trains, to “citizens of every race and color.” The Plessy Court found that The Civil Rights Cases held the Act was “unconstitutional and void.” However, recall that The Civil Rights Cases concluded that Congress lacked the power under Section 5 of the 14th Amendment to regulate private businesses. Is the Civil Rights Act of 1875 still constitutional as applied to state action, such as the Louisiana segregation law? *FN If so, then why does that federal statute not preempt the Louisiana segregation law?
*FN – See Jonathan Mitchell, The Writ-of-Erasure Fallacy, ___ Va. L.Rev. __ (2018) (“A statute that the Supreme Court has declared unconstitutional is not ‘void’ — even if a prior Supreme Court opinion describes it as ‘void.’ The statute remains a law until it is repealed, and it must be enforced by courts to the extent they can do so consistent with the Constitution. Even if one accepts the Civil Rights Cases’s interpretation of the Constitution, that means only that Congress cannot reach purely private discrimination under its section 5 enforcement powers. It does not excuse courts from enforcing the Civil Rights Act of 1875 in cases involving racial discrimination that is “sanctioned in some way by the State” or ‘done under State authority.’ The Plessy Court fell victim to the writ-of-erasure fallacy: It assumed that the Civil Rights Cases had canceled or ‘voided’ the statutory provisions in the Civil Rights Act of 1875, when the statutes remained on the books and compelled the courts to act against state-mandated racial discrimination in places of public accommodation.”).
Mitchell also rebuts another facet of the “writ-of-erasure” myth: when the Supreme Court declares a law unconstitutional in one state, similar laws nationwide are not removed from the statute books. Indeed, a similar state law that was not challenged remains enforceable until (a) the executive branch voluntarily ceases enforcement because of the Supreme Court precedent or (b) a court enjoins the application of that specific state law.
I discuss this dynamic in my new article, The Irrepressible Myth of Cooper v. Aaron:
Lawrence v. Texas illustrates this dynamic. While it is perhaps shorthand to say that the Supreme Court “struck down” Texas’s criminal prohibition on sodomy, more precisely the majority opinion issued the following order: the “judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” Not even the “transcendent dimensions” of Justice Kennedy’s prose could physically remove Section 21.06(a) from the Texas Penal Code. Indeed, the provision remains on the books, albeit appended by a notation from the Texas Legislature that “Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.” As Jonathan Mitchell has explained, the Supreme Court does not “wield a writ of erasure that blots out unconstitutional legislation.” If Texas officials attempted to enforce this prohibition, under the judgment in Lawrence, they would be on the hook for damages under 42 U.S.C. § 1983 in a subsequent suit. Nor did the Court’s judgment in Lawrence directly implicate the laws of any other state. Even after Lawrence, and to this day, Virginia’s code treats as a felon one who “voluntarily submits to such carnal knowledge,” which includes sodomy. Because this law has not been enforced since Lawrence, it remains on the books. But any prosecutor who brought sodomy charges under this section, in conflict with Lawrence’s precedent, would likewise be on the hook for damages.
Recently, the Boston Globe reported that the Massachusetts legislature is expressly repealing its criminal prohibitions on abortion, adultery, and fornication. Such laws would, without question, be declared unconstitutional if challenged in court. After all, a criminal prohibition cannot survive Roe and Casey. And bans on adultery and fornication cannot survive Lawrence and Obergefell. Why then is Massachusetts bothering to repeal them? The article explains:
In passing the bill, many lawmakers cited concerns over whether Trump’s most recent nominee to the Supreme Court, Brett Kavanaugh, might eventually tilt the court in favor of overturning its landmark decision on Roe v. Wade, allowing states to outlaw abortion again.
And while a 1981 state high court decision strongly suggests the Massachusetts Constitution protects abortion rights, advocates say it’s not explicit and needed clarification from Beacon Hill.
If Roe is overturned (which it will not be), the criminal prohibition on abortion–which was still on the books–becomes (once again) good law. The Massachusetts legislature has wisely rejected the writ of erasure fallacy.
Read Mitchell’s article. You will learn something.