Judicial supremacy versus constitutional supremacy

[Michael S Paulsen]

Okay.  I've held my tongue long enough.  Where does "stare decisis
law" come from?  Is it of constitutional status?  If so, what provision
creates a doctrine of stare decisis and what is that doctrine.  If not,
by what right does any federal judge (or state judge ruling on a
federal law issue) prefer "stare decisis law" to the judge's oath to
uphold the Constitution, federal statutes, and treaties?  If a case
holding is contrary to the Constitution, isn't it unconstitutional to
apply it in preference to the Constitution?  (Just as it is
unconstitutional to prefer an unconstitutional statute to the
Constitution?)

Michael Stokes Paulsen
University of Minnesota Law School
[visiting at Uppsala Universitet, Juridska Institutionen]



Date sent:              Wed, 21 Mar 2001 14:08:54 -0500
Send reply to:          Discussion list for con law professors <CONLAWPROF at listserv.ucla.edu>
From:                   John Rogers <jrogers at POP.UKY.EDU>
Subject:                Re: Judicial supremacy versus constitutional supremacy
To:                     CONLAWPROF at listserv.ucla.edu

> I agree with Susan that a state supreme court justice should anticipate how
> the U.S. Supreme Court would rule on any federal law issue, in any case
> that could eventually be appealed to the U.S. Supreme Court, regardless of
> whether the state supreme court justice thinks the U.S. Supreme Court will
> actually take the case.
>
> It therefore makes sense for the state supreme court justice to exalt an
> intervening Supreme Court holding over a previous state supreme court
> holding.  But if the previous state supreme court holding instead was based
> solely upon even-earlier U.S. Supreme Court cases, then the previous state
> supreme court holding (itself presumably based on those earlier U.S.
> Supreme Court cases) should bind under principles of horizontal stare
> decisis, unless there is a basis (as a matter of stare decisis law) for
> overruling the previous state decision.
>
> 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.
>
> As to Frank Cross's assertion that "Judges almost never switch their votes
> to the new precedent," I am frankly skeptical, though I have not seen the
> empirical studies he refers to.  At the very least, judges do not typically
> SAY that they only follow precedents that they would have agreed with as an
> initial matter.  Statements like those of Brennan and Marshall in the death
> penalty cases are, on the contrary, notable for their unusual nature.  If
> once-dissenting judges indeed rarely "switch" their votes to the new
> precedent, the fact is about as relevant as saying that judges rarely vote
> against public officials of their own political party.  That is, even if
> true, the rule is not one that fits well in acceptable legal discourse.
>
> John Rogers
>