Judicial supremacy versus constitutional supremacy

[susan bandes]

In the Lewis case, one question was whether state supreme court judges are
bound by earlier state supreme court opinions on questions of federal law
(or, as John puts it, whether there was "horizontally binding precedent.")
In an amicus brief for the ACLU, I argued that a state court judge who
believes a state supreme ct decision involving the eighth amendment wrongly
applied US S Ct precedent is bound, not by that decision, but by the
Supremacy Clause. The judges should not assume (as they explicitly did in
that case) that the US S Ct will step in and correct the constitutional error.

But even when we are dealing with horizontally binding precedent, it is
still not clear to me that for a S Ct justice to vote to uphold an execution
he or she deems unconstitutional is an example of the way stare decisis is
supposed to work. The Brennan/Marshall position poses the most serious
challenge to the rule of law, I suppose. As Mark Tushnet suggests, it is
also possible to dissent from a particular interpretation or a particular
application of the death penalty while still supporting capital punishment.
In either case, isn't there a strong argument that, as the final expositors
of the law, and the final arbiters of whether an execution will go forward,
each justice has the responsibility to decide based on the Constitution as
he or she understands it?

Susan Bandes

At 01:39 PM 3/20/2001 -0500, you wrote:
>Isn't it a little pejorative to characterize as "switch[ing] their votes"
>the judges' acceptance as binding of a decision to which they originally
>dissented?  Isn't that exactly how stare decisis is supposed to work?  Of
>course under each judge's view of stare decisis law there may be some
>decisions that continually warrant overruling, but that has to be
>exceptional in order for us to accept the general notion of horizontally
>binding precedent.
>
>John Rogers
>
>At 12:04 PM 3/20/01 -0600, you wrote:
>>To add one more variation to the mix, consider the Illinois Supreme Court
>>decision in People v. Cornelius Lewis (1979). In a prior case, the court
>>upheld the Illinois death penalty statute by a vote of 4-3, with the three
>>dissenters arguing the statute violated the state and federal
>>constitutions. When Lewis's case came before the court, the court's
>>composition had changed, so that one of the original majority had been
>>replaced by a fourth person believing that the statute was
>>unconstitutional. Nevertheless, the original three now switched their votes
>>and voted to uphold the statute, on the stated grounds that though they
>>continued to believe the statute was unconstitutional, they were now bound
>>to uphold it by stare decisis.
>>
>>Susan Bandes
>>
>>
>>At 09:46 AM 3/20/01 -0700, you wrote:
>>>How does this differ from the practice of Justices Brennan and Marshall of
>>>dissenting in every death penalty case on the ground that (their view of)
>>>the Constitution, and not the Court's precedents, controlled?
>>>
>>>Michael W. McConnell
>>>University of Utah College of Law
>>>332 S. 1400 East Room 102
>>>Salt Lake City, UT 84112
>
>