Judicial interpretive finality and the constitutional text.

• Author: Harrison, John

Elephants leave traces when they pass by. (1) That is true about the Constitution as it is elsewhere. For example, once the Federal Convention had made the basic decision to propose a national government of three independent branches, it implemented that decision unmistakably. Much of the Constitution is concerned with the selection, tenure, and powers of the separated legislature, executive, and judiciary. One way to tell whether the Constitution adopts a principle is thus to look for its traces, and one way to do that is to ask: If the framers had planned to include the principle, or had assumed that other decisions they had made entailed the principle, where would it manifest itself?

The principle of Cooper v. Aaron, (2) according to which the Supreme Court's opinion in a case binds all other legal actors, whether parties or not, is a good-sized elephant. That fact suggests one way to determine whether it is a sound interpretation: Ask how the framers would have worked it into their system, and what they would have had to do in order to resolve the fundamental questions that came with including or assuming it. That question can be answered by taking guidance from similar principles that are clearly manifested, seeing how those manifestations work and in particular how the Constitution deals with the issues that must be resolved if the principle is present.

A careful examination of the text contradicts the hypothesis that the drafters meant to include, or assumed that their other decisions entailed, the Cooper principle of judicial interpretive finality. (3) The elephant left no traces.

This focus on the particular supplies the answer to a natural question: What is the justification for one more article on judicial supremacy? The answer is that so far the debate on this subject has mainly focused on large principles rather than particular text and the absence thereof. Cooper itself relies on the fairly abstract principle that the courts have a special function when it comes to interpreting the law. (4) Two important defenders of Cooper, Schauer and Alexander, rely on the even more abstract principle that the rule of law is justified by the coordination function law plays. (5) A prominent critic, Michael Stokes Paulsen, relies on the principle that the branches of government are independent of one another, another high-level concept. (6) In an important recent contribution, Edward Hartnett argues against judicial finality by pointing to a range of practices that assume that the central function of courts is to resolve concrete disputes, not to decide abstract propositions of law. (7)

Indeed, to some extent the debate as it has proceeded so far makes my point. That debate has not been about particular provisions because there are no provisions for it to be about. In one place after another, where Cooper suggests that the Constitution should say something, it is silent.

Most fundamental of all is the absence of any equivalent to Article VI for judicial opinions. (8) The supremacy of federal law, and the oath-bound duty of state officers to recognize it, binds together the legal hierarchy established by the Constitution. Judicial interpretive finality attributes a functionally similar supremacy to judicial opinions, making them conclusive gloss on the law they interpret, including especially the law that is itself made supreme by Article VI. According to the judicial finality thesis, then, opinions have a very important place in the legal hierarchy, the creation of which was absolutely fundamental to the Constitution. While two centuries of experience may have dulled awareness of the radical nature of Article VI, it remains a remarkable measure, reaching into otherwise independent sovereignties and changing their rules on the most basic question of all. Moreover, the language of Article VI shows that the Federal Convention paid close attention to the precise contours of the supremacy rule it drafted; pre-existing treaties trump state law, but other actions of the United States under the Articles of Confederation do not. (9) Yet the Constitution does not give judicial opinions the interpretive supremacy that it gives to substantive federal law. Had the drafters meant to introduce this principle, thereby imposing judicial finality on the existing state constitutions, it is likely that opinions would have been dealt with explicitly. (10)

It is also likely that drafters planning on such a basic role for judicial opinions would have said something about when and how they are to be produced. Each of the authoritative texts on the Article VI list is generated by a process set out in the Constitution itself. Article VII governs that document's adoption, and Article V its amendment, while Article I, Section 7 controls the production of federal laws and Article II, Section 2 does the same for treaties. Again, no mention is made of judicial opinions.

And again experience may let us lose sight of how odd that would be, were opinions as important as Cooper says they are. Consider the main focus of attention in this context: the Supreme Court of the United States. For decades the Court has followed a practice that may seem inevitable because of its familiarity but that is in fact only one way of doing things. According to that practice, a fully binding opinion of the Court is generated when a majority of the participating Justices votes in favor of it, thereby signifying that it speaks for them. History shows that there are other possibilities. Before John Marshall it was customary for opinions to be delivered seriatim, with each Justice who had something to say speaking for himself alone. (11) Holdings, and thus precedent, were distilled from those opinions, no one of which was uniquely authoritative. Under John Marshall the practice looked like the one we know but apparently was sometimes quite different. According to the leading scholar of the Marshall Court's inner workings, it was common for so-called opinions of the Court to reflect only the views of the author (usually the Chief Justice in constitutional cases), not even having been circulated to the other members of the majority. (12) They would have agreed on the outcome and perhaps on the broad rationale, but would not have reviewed the language before it was read from the bench.

If Cooper-style absolute authority is generated only when a majority of the Justices subscribes to an opinion as such, then it is entirely possible that Marbury and McCulloch (13) lack such authority. Chief Justice Marshall may not have run them by his colleagues in final form the way we can assume that Chief Justice Rehnquist ran Seminole Tribe (14) by his. As this observation illustrates, the details of the opinion-generating process are quite important, just as the details of the presidential veto are quite important. Yet if the conclusive gloss thesis is correct, drafters who went to the trouble of excepting Sundays from the President's ten-day review period for bills did not think it necessary to say anything about how to make a binding judicial interpretation. (15)

If they simply assumed that there was such a rule built into Article III, that assumption has been lost without a trace; the absence of a trace suggests that it was not there in the first place. More plausible is the response that the Constitution does deal with this problem, the same way it deals with other problems concerning judicial procedure: Congress has authority to pass laws that are necessary and proper to carry out the judicial...