Wickard

[Sanford Levinson]

>Earl writes:


>  it seems to me that to allow lower courts to ignore precedent from the
> Supreme Court would
>create chaos (although, since we have never had such a system, I have no
>empirical evidence to support this conclusion.  ...
>By the way, Sandy, are you arguing that lower court should feel free to
>ignore all precedent from the Supreme Court, or only caselaw dealing with
>the Constitution?

As an empirical matter, I would argue that we should at least take
seriously the proposition that we have *always* had a system in which lower
courts feel (and have taken) a measure of freedom in doing what they wish
with regard to precedent.  Really to go into this would require not only
bunches of standard-form empirical research, but also a jurisprudential
theory of what it means to "follow" or "ignore" precedent.  It is surely
true that "inferior" judges (almost) never say,  "The Supreme Court has
said X, but they were wrong, and I'm ignoring it."  Instead, they say, the
Supreme Court has said Y (though most people believe they said X), and I'm
going to follow Y.  Then the ball falls in the Court's court, as it were,
as to whether they will actively monitor the "inferior" courts.  See, e.g.,
the 5th Circuit's sometimes fanciful interpretations of school prayers
following Lee v. Weisman.  No doubt, many other people can offer many other
examples, from all sides of the political spectrum.

As to Earl's direct question, I see no problem with treating the Supreme
Court as "chief bureaucrat" with regard to statutory interpretation.  The
problem, though, is that "inferior" judges take an oath to uphold the
Constitution, so the question remains if "the Constitution"="what the
Supreme Court has said the Constitution means" (except for the Supreme
Court, which, as I earlier suggested, is free to consult the "real
Constitution" and not restricted to only what they have said about
it).   And is Earl simply making a bureaucratic point, i.e., "inferior"
judges must follow their Supreme Court masters, or a more general
jurisprudential point, i.e., presidents and members of Congress must also
get in  line behind the Supreme Court?  As to the latter, of course, the
standard example is Abraham Lincoln's (and the Republican Party's)
unwillingness to view Dred Scott as the "law of the land."

sandy