Monday, February 11, 2019

Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law

By Eric Segall

I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.

The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.

Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.

As I am the author of the essay, "The Constitution Means What the Supreme Court Says it Means," I couldn't let all this pass.

Steve's argument, in brief, which he has made in print as well, goes something like this: Judicial opinions can be a "source of law," and can be res judicata or the law of the case, and may have legal force, but "they do so by treating the judicial decisions as if they were law, and not by substituting those decisions for the underlying legal standards on which they’re based." Steve argued, for example, that the Fourth Circuit's decisions are binding in Maryland but not Delaware, "even though the same Fourth Amendment applies in each state." Moreover, "the same theory can be applied to courts of last resort. There’s no reason why the holdings of the Supreme Court of the United States have to be taken to represent 'the law,' as opposed to 'the law of the Supreme Court,' binding on other courts within the range of its appellate jurisdiction."

Similarly, Chris has often argued the Constitution means what it means notwithstanding erroneous Supreme Court decisions. Public officials take an oath to uphold the Constitution, not what the Court says the Constitution means.

Before I respond to these arguments, let me suggest why this debate is so important. Steve and Professor Will Baude have spent much ink arguing that originalism is in fact and deed our law (a thesis Chris is sympathetic to), while I have devoted much effort to arguing that oiriginalism is most certainly not our law. Steve, Will and Chris claim that the founders' law, the Constitution, is our law until it is lawfully changed, and that we debate that law using originalist arguments and criteria.

Crucial to their arguments is the idea that non-originalist, anti-originalist, in fact all court decisions are not "our law." Instead, our law is the law of the original Constitution, as amended, even if the Court frequently gets that law wrong. The connection here is that only the Constitution (and valid federal statutes and regulations) are law, whereas Supreme Court decisions that are inconsistent with our original law are not law, even if we treat them as coercive. I interpret this, and I'm pretty sure Steve and Will agree, as a positivist argument.

At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).

The Fourth Circuit and other Circuits may disagree, and often do, on constitutional issues. Unless the Supreme Court steps in, however, the constitutional law of each circuit is what the highest court in that circuit says it is. To describe these decisions as not law is to adopt an outsider's perspective to what the players in the system believe and how they act.

That last point makes me wonder who Steve, Chris and Will think they are taking to. At the beginning of my remarks at the debate, I mentioned that Steve is an excellent historian and philosopher and that Chris is a master of philosophical and linguistic arguments. These are sincere compliments. But I then told the students that most of them will be lawyers, some will be judges, but few will be historians or philosophers. The issue I care most passionately about and devote most of my scholarship to figuring out, and the one that matters on the ground, is what should a judge do when a plaintiff comes into court arguing that she should invalidate decisions of other more accountable political actors. That is the moment we should be discussing. And in this country as of today, the best descriptive account of what judges will do, meaning which party they will rule for and why, has much more to do with Supreme Court precedent, which most of the time will not be originalist in nature, than the 1787 or 1868 Constitutions. David Strauss' common law constitutionalism more accurately describes what judges do than Steve and Will's account and demonstrates that prior case law matters much more than text and history to judges in real courtrooms deciding real cases.

A few years ago, prior to the Court's opinion in Fisher v. Texas II, I confidentially asked numerous admissions officers at elite schools whether they would comply with a Court decision ending all affirmative action. Their answers were instructive. Three of them said that they would find a way to ascertain the race of the applicants and they would use substantial efforts to find a "way around the law," meaning the upcoming Court decision.

For all practical purposes, the Constitution means what the Supreme Court says it means, which is why Georgia can't yet prohibit all abortions, Montana can't regulate corporate political speech the way it wants to, and Alabama must recognize same-sex marriages. Philosophers can debate whether court decisions are "law," in a technical sense, language experts can ask whether there is a difference between saying "the meaning of the Constitution changes as outcomes change" or saying "only the applications of the same text change," and we can all debate whether or not originalism is our law as a theoretical manner.  But two things are true: 1) constitutional law evolves and changes every term even though the text remains exactly the same, and 2) non-judicial political actors and the American people treat court decisions as law from traffic courts all the way up to the Supreme Court. That being the case, it is more than perplexing to me that legal positivists would argue that court-made law isn't real law.

15 comments:

Joe said...

I don't call Trump "President" ... I think the term requires a minimal amount of respect from the person holding the office & he does not show it. Respect is earned and at some point when I hear certain people say "the President," seems they are saying it with a certain amount of awe or something that is not deserved. And, not using the term in a small way does diminish Trump's authority in office when enough people show a similar lack of respect. Power comes from different things and when people in power lose the respect of others, they lose some power.

I realize the guy is holding the office of the President. Thurgood Marshall in the 1940s knew what "really" happened even if he argued that the Constitution "really" meant something else. Ditto Ruth Bader Ginsburg a bit later on. So, the various usages of the "law" discussed in this essay is well taken.

How did works with the author's "the Supreme Court is not a 'court' " argument is an argument for another day.

Shag from Brookline said...

Anarchical Originalists? What part does the Supremacy Clause of the Constitution play with SCOTUS decisions?

Unknown said...

Originally, we said back in 1787, in order to set up a new nation - we need to get organized -- who will do how, what and when--so we set up three branches for a government to establish justice --as just as we can make it, all things considered , insure the folks are tranquil and don't fight one another--except when we had some foreign people mixed up for a time and they never got to go back home--, to provide for the common defense at least so no one will think of attacking us, to promote the general welfare by giving out free food and some cash, too, from time to time, and secure the blessings of liberty, and if not we can't have that, then death.

Is the constitution Law? Of course not. It's what James M. Buchanan called "The Higher Law" This higher Law was Declared originally back in 1776 when the natural right of people want to institute a new government they do so by laying its foundation on such principles and organizing its powers in such forms as to them shall seem most likely to effect their safety and happiness.

Are we all now safe and happy?


Shag from Brookline said...

Over at the Originalism Blog, there's a post on Eric's earlier post critical of Baude and Zach's article referenced by Eric here in this post. Rather than circling the wagons around Eric's earlier post, the Originalism Blog quoted from and provided a link to what seems to be a favorable review/essay of Eric's recent book "Originalism As Faith, a review/essay that runs 42 pages. (Maybe Eric can comment on that review/essay.)

While the Constitution has a Supremacy Clause, it does not specifically provide for judicial supremacy horizontally by SCOTUS over the Executive and Legislative Branches. Nor does the Constitution specify for judicial review as it has come to be known. So who decides what is the law? Was C.J Marshall wrong in Marbury v. Madison (1803)? More recently, was Finley Peter Dunne's Mr. Dooley wrong? Is this where faith decides?

egarber said...
This comment has been removed by the author.
egarber said...

This may be butchering Hart a bit, but isn't the SCOTUS both a rule of recognition and adjudication? And therefore, in our system there can be no true effective law without it? It's all part of one functioning entity that makes up "law." Not irreducible.

Eric Segall said...

I think I agree with the Hart point, and Shag I like that review essay very much (it is generally quite flattering). The Court does not act like a court, but we still treat its decisions as law is my response to Joe. Trump doesn't act like a POTUS but......

Joe said...
This comment has been removed by the author.
Greg said...

I'm not sure it's quite so straightforward. People will most definitely claim that the Supreme Court "got the law wrong" when a decision doesn't go their way, particularly when that decision seems flagrantly incorrect. In that sense, these people do seem to believe that there is some higher concept of law that the court is capable of getting incorrect.

Based on that perception, if court decisions are "law" this means that "law" can be wrong in a legal sense, which is at least a strange concept. Then again, perhaps a wrong Supreme Court decision on constitutional interpretation is no different than a law passed by Congress that it did not have the authority to make due to constitutional restrictions?

Shag from Brookline said...

Over at Balkinization Neil Siegel has an interesting Feb. 11, 2019 post "Resisting Gloss's Liquidation" that includes the abstract to his and Curtis A. Bradley's article with that title. I'm in the process of reading the article on my desktop. I just finished reading Part I. "The Originalist Turn To Practice" (pages 6-11) that provides a discussion of both non-originalism and originalism, addressing the use of post-Founding historical practice. Those interested in how the Constitution should be interpreted/construed should find Part I of great interest. While the thrust of the article is on Executive power based on historical practice (as opposed to original meaning in Article II of the Constitution), one has to consider how non-originalism and originalism address this. The article takes up Will Baude's recent article that focuses on liquidation (Madison's) and reliance on historical practice, compared to judicial gloss. It's a complex subject that requires interpreting/construing the Constitution. I think it ties into Eric's post.

Joe said...

Today being Lincoln's birthday, before the comments are no more, it might be appropriate to quote from his remarks. His speech at Cooper Union is particularly notable (a video of Sam Waterston performing it can be found online) as is his first inaugural address. This portion is of some relevance:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes."

Shag from Brookline said...

Joe, it's pleasant reading Lincoln's words. But respecting the closing clause:

" ... and it is no fault of theirs [judges] if others seek to turn their decisions to political purposes."

ti's problematic when their decisions are based upon political purposes.

Shag from Brookline said...

The full title of the Bradley/Siegel article is:

"Historical Gloss, Madisonian Liquidation and the Originalism Debate"

The abstract and a link is provided at Larry Solum's Legal Theory Blog, with Solum providing his "Highly Recommended, Download it while it's hot!"" and an editorial comment (that does not seem to challenge the authors' critiques of originalism).
"

Samuel Rickless said...

Dear Eric,

You write this:

"The issue I care most passionately about and devote most of my scholarship to figuring out, and the one that matters on the ground, is what should a judge do when a plaintiff comes into court arguing that she should invalidate decisions of other more accountable political actors. That is the moment we should be discussing. And in this country as of today, the best descriptive account of what judges will do, meaning which party they will rule for and why, has much more to do with Supreme Court precedent, which most of the time will not be originalist in nature, than the 1787 or 1868 Constitutions."

One of the things that we philosophers emphasize is the importance of distinctions. Your first sentence discusses what judges *should* do. Your third sentence then moves on to discuss what judges *will* do, as if there were no difference between these two issues. But, of course, they are different. It is perfectly coherent to say that a Court will issue such-and-such a ruling even though it shouldn't, or that a Court won't issue such-and-such a ruling even though it should. This happens all the time. Lawyers and judges *constantly* make judgments of this sort. Not all of their statements are descriptive. Some are prescriptive. And sometimes the descriptive and the prescriptive don't match.

It's not just false that the Constitution means what the Supreme Court says it means: it's *obviously* false. If that were true, then, if the Court says at T1 that some constitutional clause means P, and then a later iteration of the Court says at T2 that the same constitutional clause means Q, we would have to say that the clause means P at T1 and the same clause means Q at T2. It would follow not only that the meaning of the clause changes over time, but also that the meaning of the clause changes just because a majority of nine judges says it does. These consequences are false: they are contrary to everything we know about linguistic meaning.

Suppose that tomorrow the Court, in a bizarre fit, rules that "legislative power" means the power to enforce laws, and that "executive power" means the power to make laws. According to the Court, Congress would become the executive branch, and the President would become the legislative branch. Would you say, "well, the Constitution means what the Court says it means"? I imagine that you would be *critical* of the Court's decision. You would say that the Court is making a mistake. Why? Because it has misunderstood the meaning of "legislative power" and the meaning of "executive power". The document has a meaning. The meaning it has is independent of what the Court says it means. This is what explains our critical reaction to such a decision.

This is not a bizarre thesis about meaning. It is a commonplace. Suppose I am reading a discussion of enthusiasm in Locke's *An Essay Concerning Human Understanding," and I take the word "enthusiasm" to mean "intense interest or approval". That would be a mistake. That is not what the word meant in 1690. It meant "religious fervor supposedly resulting from divine inspiration".

You don't have to be an originalist to recognize that the Constitution means what it means, irrespective of what the Court says it means.

best wishes
Sam

Eric Segall said...

"it's not just false that the Constitution means what the Supreme Court says it means: it's *obviously* false." If that were true, then, if the Court says at T1 that some constitutional clause means P, and then a later iteration of the Court says at T2 that the same constitutional clause means Q, we would have to say that the clause means P at T1 and the same clause means Q at T2."

This demonstrates why you, Chris and Steve are just approaching all this from a non-legal, non player, external perspective. Judges only care what the Constitution "means" when applying it to facts. Period, full stop. Without facts, judges are not involved. And of course the meaning of the same text as applied to the same facts changes over time. That is simply not debatable on the ground. So, not only is my statement about meaning "not obviously false," it is obviously right, as legions of overruled cases demonstrate.