Ducking Dred Scott: a response to Alexander and Schauer.

• Author: Sherwin, Emily
• Position: Response to Larry Alexander and Frederick Schauer, Harvard Law Review, vol. 110, p. 1359, 1997

In their article entitled "On Extrajudicial Constitutional Interpretation,"(1) Larry Alexander and Frederick Schauer promise to provide an "unqualified" defense of the rule of judicial supremacy announced in Cooper v. Aaron.(2) According to that rule, government officials must obey the Constitution as it has been interpreted by the Supreme Court, even when they disagree with the Court's interpretation.(3) They are not free to follow their own judgment of what the Constitution requires. The Court has lately reaffirmed the rule of obedience, holding in City of Boerne v. Flores(4) that Congress may not work substantive changes in constitutional interpretation through Section 5 of the Fourteenth Amendment. I do not propose to quarrel with the Court, or with Alexander's and Schauer's endorsement of Cooper v. Aaron. My point is that Alexander and Schauer have not gone far enough to accomplish what they would like to accomplish. In fact, their argument is qualified in a very important way.

Alexander and Schauer base their defense of the rule of obedience to Supreme Court decisions on the "settlement function" of law. The primary object of law, in their view, is "to settle authoritatively what is to be done" in contested situations, which in turn will promote social stability and enable individuals to coordinate their actions in mutually beneficial ways.(5) The potential benefits of settled law provide a "content-independent" reason why individuals should obey the law even when they disagree with its commands.(6) The authority of Supreme Court decisions interpreting the Constitution stands on the same ground: "[t]he reasons for having laws and a constitution that is treated as law are.., also reasons for establishing one interpreter's interpretation as authoritative."(7)

I find this argument at least potentially persuasive. Settlement, stability, and coordination are important goods that can only be had through a general practice of obedience to rules. They are not the only goods a society might pursue, and few would maintain that they are entitled to lexical priority. Moreover, obedience to decisions of the Supreme Court is certain to result in errors: sometimes the President or Congress will be right and the Court will be wrong. Yet if we expect that the benefits of obedience to Supreme Court decisions are greater than the harm obedience will cause through error, a rule of obedience is justified. I am willing to assume, with Alexander and Schauer, that this is the case, even though the Court will make mistakes and may never correct them.

The weak spot in Alexander's and Schauer's argument emerges when they come to Dred Scott.(8) Having set out their case for a rule of obedience to Supreme Court decisions, they now anticipate an objection: surely Lincoln was right to threaten disobedience to parts of the Court's holding in Dred Scott. To avoid this difficulty, they explain that the obligation they have been defending is in fact only one "overrideable" reason that ought to play a part in official judgment. All things considered--including the obligation to obey--Lincoln was right to disobey the Court. Alexander and Schauer insist that this concession does not undermine their argument:

It just means that [the wrong of disobedience] was outweighed

by the greater wrong that would have occurred had

the war been lost. Once we see that overrideable obligations

are still obligations, we need not say that Lincoln should have

followed Dred Scott.(9)

Thus, the rule of obedience that Alexander and Schauer propose is not a serious rule--a rule to be followed in every case to which it applies. It is simply a consideration, of some...