Of judicial supremacy and academic inadequancy.

• Author: Idleman, Scott C.
• Position: Supreme Court

The ultimate supremacy or exclusivity of the Supreme Court's constitutional interpretations has been a matter of incremental but predictable accretion--a sort of multi-phase leviathan. Almost two centuries after Marbury, the horrifying reductio of this incrementalism has finally come to pass. In Kazmier v. Widmann--a decision that could bring constitutional scholarship as we know it to a halt--the Fifth Circuit has bluntly declared that "the support of even so prominent an academician [as Professor Laurence Tribe] is an inadequate substitute for rigorous adherence to recent Supreme Court precedent."

Ouch! Laurence Tribe "inadequate"? At first, one might surmise that the court's declaration is just a slip of the pen, a momentary indiscretion, and not a considered rule of constitutional authority. So benign an interpretation, however, is belied both by the specificity and by the absoluteness of its phrasing. Undaunted, one might then insist that obviously it relates only to Professor Tribe. Expressio unius, right? Wrong. As the greater includes the lesser, one can only assume that the Fifth Circuit's rule applies not only to Tribe, but that the rest of us, too, are also "an inadequate substitute for rigorous adherence to recent Supreme Court precedent." To be sure, the Supreme Court itself had previously suggested as much, remarking in 1995 that a congressional enactment may still be unconstitutional even if "supported by all the law professors in the land ..." (2)

There's no way around it. The writings of constitutional scholars may no longer be on par with Supreme Court opinions. At best such a rule is disheartening; at worst it portends the demise of legal academic writing. How difficult it already is, on a sunny summer day or a cool autumn evening, to sit in our home offices and churn out legal scholarship. Now we must toil away knowing full well that these writings, the very fruit of our labor, will not be binding on the courts--that our status as constitutional interpreters has in effect been reduced to that of the states and of Congress, if not lower. (3)

Even more troubling is that the Fifth Circuit's rule appears to be unfounded. To my knowledge, not one article of legal scholarship--in contrast to some of these very same judges' decisions--has ever been reversed or overruled or formally abrogated, even on other grounds. (Preempted, rejected, and criticized perhaps--but never reversed, overruled, or abrogated.) Of course, by the same...