Lofton case

[Dellinger, Walter]

1.  First, as to the President's power to make his own constitutional
determinations, the starting point of wisdom is Professor Dawn Johnsen's
definitive article, Presidential Non-Enforcement of Constitutionally
Objectionable Statutes
<http://www.law.duke.edu/shell/cite.pl?63+Law+&+Contemp.+Probs.+7+(WinterSpr
ing+2000)> , 63 LAW & CONTEMPORARY PROBLEMS 7 (2000).  Since the time that
Dawn and I served together in the Justice Department, I have come to have a
more aggressive view of the President's authority to make his own
constitutional determinations that Dawn has.  But you will find that Dawn's
views are  more scholarly and balanced than mine.
2. As to the questions ably posed by Bobby Lipkin which were essentially: if
the Court is not Supreme, who does resolve conflicts over the meaning(s) of
the Constitution?  What mechanism would there be to avoid conflict and
confusion?  The answer, for one who believes that the Court has no special
entitlement to determine the meaning of the Constitution, is that there are
other rules that determine who has the final answer in any particular
situation.  Give me any hypothetical involving conflicting interpretations
of the Constitution between branches and I can almost always tell you which
branch will in effect have the final word.  Most often it will in fact be
the Court.  That is because each and every part of the government, in doing
its assigned tasks, construes the Constitution.  The Court's job is to
resolve disputes between real parties in real cases.  In doing that job the
Court applies all the law, including the trumping law of the Constitution.
Since we have a very strong principle of not applying coercive power to an
individual without going through a court, the Court will in fact usually
have the last word -- because the job of the Court puts in that position.
But if the President wants to invoke the pardon power, he clearly has the
last word in those cases, as he does with the veto.  And I believe that a
President can instruct the AG not to bring prosecutions under a criminal
statute that the President believes is unconstitutional, even if he also
believes that the Court would disagree and uphold the law.  
   Now, you might ask, suppose reverse situation obtains and the Court holds
a federal criminal law unconstitutional -- totally, completely and on its
face -- that the President believes is constitutionally valid.  Does my view
of constitutional protestantism lead me to conclude that the President
should or could continue to order the arrest and prosecution of individuals
under a law the Court has said is void?  No -- but not because the Court is
"supreme".  But only because -- and this is a powerful "only" -- it is an
abuse of process to bring a prosecution that you know will be futile  -- for
whatever reason.  This is, I think, Rule of Law 101.  It is a similar reason
that makes it wrong for a lower court -- including a State Supreme Court --
to fail to apply in good faith what they understand to continue to be  US
Supreme Court law.  Its wrong to force someone to take an appeal that you
know is certain to succeed.  
    To go back to where this tread began, I believe that lower court judges
are free to criticize the Supreme Court in their opinions.  Whether on not
that brings the Supreme Court into public disrepute depends on the
persuasive power of the lower court's criticism of the Supreme Court ruling;
and if the lower court is right and persuasive, then the Supreme Court
deserves to have its reputation lower in the public mind.   But I also agree
with Ed Foley that in its rulings a lower court should not only follow
Supreme Court precedent, but apply that precedent to other cases in good
faith.  

3   As to the general point Ed Foley makes, I entirely agree him.  Ed wrote:

		"I might express Walter's point about lower court judges
somewhat more strongly than he does.  It seems to me that the obligation of
lower-court judges to be faithful to Supreme Court precedents is more than
just an efficiency point about the power of reversal.  It's a fidelity
obligation associated with the distinctive role of being a lower court judge
in a hierarchical judiciary  -- at least ours as (I think) traditionally
conceived.  This obligation, I would suggest, is not merely to follow S.Ct.
precedents begrudgingly, or as narrowly as one can get away with, but to
implement them as best as one can according to their own logic. "

Even if one believes (as I do)  that the Supreme Court has no special
warrant to proclaim the meaning of the Constitution, it does not follow that
other bases for according respect to judicial judgments are thereby
weakened.  See above.  (I do agree with Sandy that a lower court should be
able to anticipate a US Sup Ct overruling and act accordingly.  The Sup Ct
is wrong on this point.) 

4.  Here's one reason this all matters.  To borrow a powerful phrase from
Larry Kramer, the notion of judicial supremacy has become a
"doctrine-shaping imperative."  That is, in order to maintain the case for
judicial supremacy, a 'legalistic' interpretation is cast on parts of the
Constitution that should have been read to call for the exercise of
political/governmental judgment.  Examples of what I mean by questions that
are fully Constitutional but nonetheless call for
political/governmental/executive/legislative judgment and thus are in some
instances more suitable for resolution by other branches of government than
the court include:  whether a state's electoral votes should be counted for
Candidate A or B, properly entrusted to an elected Congress precisely
because it should contain an element of political judgment; Whether the
President should be convicted (and thus removed from office) on articles of
impeachment; Whether certain practices by the state or private entities so
follow from the racial aspects of slavery that they ought to be forbidden by
Congress under the 13th amendment; and many questions of judgment under the
14th amendment.

   Judicial supremacy -- and its companion doctrine of  a legalized reading
of all parts of the Constitution --  has so spilled over into our
understanding of the Constitution that when a constitutional issue is
clearly entrusted to a non-judicial body, it is assumed that body should
decide as if it were a court.  For example, both sides of the Clinton
Impeachment saga urged the Senate to decide legalistically, as if it were a
court.  I thought both were wrong in that respect.  Here I oversimplify and
will no doubt be unfair to the arguments, But... Clinton supporters tended
to argue that the kinds of things of which he was accused could not as a
matter of  constitutional law be impeachable.  I found that unpersuasive. I
don't think you can legalistically rule out lying and sex offenses from
being impeachable conduct.   The President's foes, on the other hand also
took a legalistic approach, arguing that once the threshold of 'high crimes
and misdemeanors' was passed, the Senate had no choice but to convict and
remove.  I thought both were wrong -- there was plenty of room in this case
for the exercise of constitutional/governmental  judgment by the House and
by the Senate.  The framers recognized that removing or not removing the
head of state should be an exercise in governmental judgment -- that's why
they gave it to political institutions, not to the Court. Thus, I thought
the both sides erred insofar as they insisted that the Senate was obligated
as a matter of law to rule their way.  That of course does not mean that
each member was free to rule "however the hell they wanted to"; the exercise
of constitutional judgment is a serious matter for which there are external
norms; but they are not necessarily 'legalistic' norms calling for one to
act like a court.

-----Original Message-----
From: Levinson [mailto:SLevinson at mail.law.utexas.edu
<mailto:SLevinson at mail.law.utexas.edu> ] 
Sent: Saturday, January 31, 2004 12:14 PM
To: WDellinger at OMM.com
Cc: conlawprof at lists.ucla.edu
Subject: Re: RE: Re: Lofton case



   But he is wrong to suggest that a lower court judge might properly refuse
to abide by Supreme Court precedent.  
__________________________

I suppose that "suggest" is the right word, since I've scarcely worked out a
full position.  But...  Consider first Judge Parker's opinion in the
Barnette case, which held that the Gobitis precedent was no longer "good
law" because of intervening developments in the US Supreme Court.
Interestingly enough, the Harvard L. Review "note" on Barnette didn't talk
about the first amendment issues that make the case such a landmark, but,
rather, the propriety of Judge Parker's deciding as he did.  I'm quite
sympathetic to what he did, because I find the AGonstini doctrine (such as
it is) a mixture of authoritarian and mindless.  I.e., to use Ned Foley's
suggestion, a Dworkinian "inferior" judge might genuinely believe that
doctrinal developments subsequent to decision X have removed whatever
"gravitational" force it might have, that true "fidelity" to the law, as
declared by the Supremes, requires recognizing that X is no longer "good
law," though the SC hasn't gotten around to saying that yet.  *If* one could
count on the Court taking any and all cases implementing X, that would be
one thing.  But, as we know, the Court has complete discretion, so we have
the anomoly of the Court's allowing the continued implementation of X even
as (by stipulation) a majority of the justices, if they got around to it,
would say that X has indeed been overruled.  What a decision like Parker's
does, in effect, is to "force" the Supreme Court to put the issue on their
agenda.  I don't see what's wrong this this.

Secondly, I cite an opinion published in F.Supp. (I din't have the citation
ready at hand) in 1974 by Judge James B. McMillan, the federal district
judge for whom I had the honor and pleasure of clerking.  It dealt with
police searches after traffic stops.  As a student of Tony Amsterdam, I
helped to persuade Judge McMillan that there should be limits on such
searches.  (Needless to say, some drugs had been found on someone stopped
for speeding.)  And he wrote a opinion granting habeas relief.  Immediately
afterward, the Court decided Robinson v. US (I think that's the name of the
case), which held that full searches could follow from any legitimate stop.
What Judge McMillan did, following Walter's argument, was to reverse his own
opinion rather than force NC to pay the costs of an appeal that it would
obviously win.  BUT, he published both his original opinion and his
"withdrawing" memorandum in F.Supp., saying that he was bowing to "the power
but not to the wisdom" (or something like that) of the Justices.  Again, I
don't see anything wrong with this.

Walter may remember when we were on a panel together at the AALS in January
1992 (which seems like a lifetime ago), with Ken Starr, who was, of course,
concluding his service as SG (just before Walter would become head of OLC).
I noted that, whatever the Court said in Lee v. Weisman, the Fifth Circuit
had decided (I thought "preposterously," as is my hyperbolic wont) that it
was all right if the invocation, that went over the school's p.a. system in
the morning,  was "student initiated" rather than principal-initiated.
Starr, presumably a capable lawyer as well as experienced former appellate
judge, didn't think this was preposterous at all, that it was, instead, a
perfectly proper distinction to draw.  So, obviously, this returns us to the
classic first-year issue of what, exactly, constitutes "following a
precedent."

Walter also writes:

This obligation of lower court judges (and in
some kinds of circumstances, executive branch officials) to abide by Supreme
Court precedent flows from a much more practical and ordinary consideration
-- the power to reverse.  Where is it is known that the Supreme Court will
reverse holding X, it is simply an abusive process to rule X and thereby
force the litigant who loses in the lower court to undertake a wholly
unnecessary appeal. It's the judicial equivilent to a rule 11 violation to
unnnecessarily add an burden to a party who it is known will ultimately
prevail.  This is just a simple common sense accomodation to the fact that
we know how the matter will come out in the end, and courts and executive
branch officials must not impose a wholly unjustified burden on a litigant
who is destined to prevail upon appeal.
_________________________________________

As someone else noted, this is in some sense an empirical rather than
conceptual argument.  I think that Walter is absolutely right with regard,
say, to Judge McMillan in the anecdote related above.  I.e., there was no
doubt that NC would appeal and that the Fourth Circuit, bound to take the
appeal, would overturn Judge McMillan's opinion.  But, of course, there's
very good reason to believe that the Supreme Court will avoid taking cases
so long as they don't directly spit in their eye (thus the importance of
"distinguishing" precedent rather than saying "it's stupid, I'm not going to
follow it.").  So something else than fear of the consequences has to be
invoked to explain why low-visibility officials care what the Supreme Court
(or, for that matter, the President) says.  We quickly find ourselves in the
land of OW Holmes and the "bad man," who thinks only of consequences.  

A further note on Bobby Lipkin altogether reasonable question:  I'm not sure
how much we really rely on their being "final authorities" whose word is law
(as it were).  We increasingly realize that even the worst dictatorships
have some element of pluralism in them, where negotiation is, as a practical
matter, more important than "orders."  Indeed, one of the ways that the US
constantly makes mistakes--see Iraq--is to assume that "dictators" really
and truly "dictate," with no ands, ifs, or buts.  We now realize how
mistaken this was even with a genuine tyrant like Sadaam Hussein.  *Every*
hierarch is well advised to read Richard Neustedt's Presidential Power,
which begins with Harry Truman's saying (something like) "Poor Ike.  As
President, he'll issue 'orders,' thinking that's the end of it.  But he'll
have to learn that his real power lies in the ability to persuade."

sandy  


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