This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these three bodies of law provide the exclusive ways in which constitutional adjudication gives rise directly to binding constitutional law. This Article argues that our Justices should be judicial departmentalists rather than judicial supremacists.
Table of Contents INTRODUCTION I. THE CASE FOR JUDICIAL SUPREMACY: A SKETCH A. "Judicial Supremacy Is the Law" B. The Settlement Function of Law C. The Collapse Argument Against Departmentalism II. THE LEGAL FOUNDATIONS OF JUDICIAL Departmentalism A. Jurisdiction, the Law of Remedies, and the Law of Judgments B. The Law of Precedent C. Putting the Pieces Together III. WHY AND HOW JUDICIAL DEPARTMENTALISM MATTERS A. Adjudication, Equilibration, and Implementation B. The Benefits of Self-Aware Judicial Departmentalism. 1. Judicial Audience and the Dual Nature of Supreme Court Opinions 2. Bounded Legal Settlement 3. Collapse into What? C. Revisiting Standard Supremacy Doctrine CONCLUSION INTRODUCTION
This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. It contends that our Justices should be judicial departmentalists rather than judicial supremacists.
Judicial supremacy is the conventional designation for the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. (1) Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. (2)
Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. (3) To the extent that these judicial settlements remain undisturbed over time, judicial departmentalism enables a type of judicial supremacy to function as a practical matter. But this supremacy is legally limited by the boundaries around judicial resolutions imposed by the law of judgments, the law of remedies, and the law of precedent. (4) Judgments are generally limited to parties, injunctions can be lifted, and precedents can be overturned, for example. (5)
Judicial departmentalism has not previously been presented as a conceptual framework for thinking about the authoritativeness of judicial determinations of constitutional law. But this Article argues that it already is our law, and that the conventional view that judicial supremacy is our law rests on much weaker foundations than commonly thought.
Part I quickly sets the stage for comparing judicial supremacy and judicial departmentalism. It does so through an overview of the better known of the two ideas: judicial supremacy. It first presents the conventional doctrinal account of judicial supremacy's place in today's constitutional law. It then sketches the two most prominent normative arguments marshaled in support of the comparative superiority of judicial supremacy. These are the settlement-function argument for judicial supremacy (6) and the collapse argument from the instability of alternatives. (7) The exposition in Part I operates externally. It describes how nonjudicial officials are told they should regard the authoritativeness of Supreme Court determinations of constitutional law if they are judicial supremacists:
as equivalent in authority to the Constitution itself. (8)
Part II provides an overview of judicial departmentalism. It operates from a detached perspective that describes how the bindingness of judicial determinations is generally understood to arise within our legal system through the law of remedies, the law of judgments, and the law of precedent.
Part III argues for the comparative superiority of judicial departmentalism to judicial supremacy. Its arguments are aimed at the internal point of view of Supreme Court Justices deciding how they should want the authoritativeness of their judicial determinations of constitutional law to be accepted by others.
THE CASE FOR JUDICIAL SUPREMACY: A SKETCH
There are three primary components to the case for judicial supremacy. (9) I sketch them out briefly in this Part but do not provide full-blown renditions of the arguments. That has already been done well by people who actually adhere to judicial supremacy and aim to bring others into the fold. But because my case for judicial departmentalism as comparatively superior to judicial supremacy is, well, comparative, I begin by identifying some of the leading attractions of judicial supremacy.
"Judicial Supremacy Is the Law"
The first, and most obvious, argument for being a judicial supremacist is that judicial supremacy is the law, and it is good to follow the law. (10)
Conventional renditions of doctrine identify Cooper v. Aaron (11) as the Supreme Court's decisive adoption of judicial supremacy into constitutional law doctrine. (12) This was the school desegregation case out of Little Rock that the Supreme Court heard in a special session in late summer 1958 after President Eisenhower sent federal troops to enforce integration of Little Rock's Central High School for the 1957 school year. (13) In their decision agreeing with the NAACP that further delay of school integration should not be permitted, the Justices identified Brown v. Board of Education (14) as the law of the land on par with the Constitution itself. (15)
The Cooper Court purported to find in Marbury v. Madison (16) the principle that "the federal judiciary is supreme in the exposition of the law of the Constitution." (17) This principle, stated the opinion of the Court, is "a permanent and indispensable feature of our constitutional system." (18) And from this principle, "[i]t follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect ... 'any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'" (19)
In more recent years, City of Boerne v. Flores and the Court's Section 5 case law more generally rest on a similar equation. (20) In Boerne, the Supreme Court held the Religious Freedom Restoration Act (RFRA) unconstitutional as applied to state and local governments because the statute exceeded Congress's enforcement authority under Section 5 of the Fourteenth Amendment. (21) Congress enacted the RFRA in response to the Supreme Court's holding in Employment Division v. Smith (22) that the Free Exercise Clause did not authorize judicially created exemptions from neutral and generally applicable laws that incidentally burden religious exercise. (23) In the few decades preceding Smith, the Court had purported to apply a more religion-protective test, and Congress sought by statute to restore a version of that test. (24) The Supreme Court held that Congress could not do this using its Section 5 authority because substitution of the earlier approach could not be understood as enforcing the Free Exercise Clause as interpreted in Smith. (25) Although the Court divided on other grounds in Boerne, no Justice dissented from the majority's analytical framework equating the Free Exercise Clause and Smith. (26)
Anyone interested in understanding judicial supremacy must also pay special attention to the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. (27) This was the case in which the Court reaffirmed a constitutional right to abortion by preserving what it called "the essential holding of Roe v. Wade." (28) The controlling plurality opinion does not equate the Court's opinions with the Constitution; it even professes some doubt about whether Roe v. Wade was rightly decided. (29) But the opinion raises the stakes even higher. It says that the American people's "belief in themselves" as "a Nation of people who aspire to live according to the rule of law ... is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." (30) This is judicial supremacy on steroids.
The Settlement Function of Law
The leading normative defense of judicial supremacy is based on the settlement function of law. (31) A well-developed and prominent account of the settlement-function argument for judicial supremacy has been provided by Professors Larry Alexander and Fred Schauer in coauthored law review articles. (32)
Professors Alexander and Schauer explain that law provides the benefits of authoritative settlement and of coordinating social behavior. (33) These benefits provide reasons for following laws even when one disagrees with the content of those laws, for even mistaken laws serve settlement and coordination functions. (34) Alexander and Schauer contend that the benefits of settlement and coordination provided by stare decisis doctrine within the judicial domain are also provided by applying a norm of deference to prior Supreme Court determinations outside the judiciary as well. (35) This settlement function, they argue, is particularly important for constitutional law "because the Constitution governs all other law." (36)
To achieve the benefits of settlement and coordination over time, Professors Alexander and Schauer argue that "the Supreme Court's...