Judicial supremacy versus constitutional supremacy

susan bandes sbandes at CONDOR.DEPAUL.EDU
Thu Mar 22 08:07:07 PST 2001


As you correctly surmise, I completely agree that judges must take precedent
into account in determining the meaning of the Constitution. The question is
how binding it should be. The question I raise (and to which I have no easy
answer) is whether capital punishment does present a special case of sorts.
In every case, the Article III judge has the duty to do justice to the
particular parties before him. What if he believes that controlling
precedent would lead to an unconstitutional execution? What is his duty?
Unfortunately, there are incentives for every decisionmaker at every level
in a capital case to assume that the ultimate responsibility for deciding
whether death is the appropriate punishment will be taken care of at some
later stage of review. What is the role of each Supreme Court justice, given
their last resort status?

Susan Bandes

John Rogers wrote...

>I disagree, however, with Susan's suggestion that, where the issue is an
>execution, a S Ct justice should disregard precedent because the Supreme
>Court members, "as the final expositors of the law, and the final arbiters
>of whether an execution will go forward, [each has] the responsibility to
>decide based on the Constitution as he or she understands it."  Stare
>decisis law IS law, although we may differ as to its provenance.  Or so I
>would argue.  If so, it is LAW that the Supreme Court justice is applying
>when he or she follows precedent rules that he or she might not have
>arrived at in the absence of the precedents.  Surely Susan cannot be
>arguing that the Constitution PREVENTS a justice from ascertaining what the
>Constitution means by looking at "controlling" precedent.  Such an argument
>flies in the face of the whole system of constitutional precedent.
>Also, just because the issue is capital punishment should not affect a
>judge's otherwise proper determination and application of the law.
>John Rogers

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