Combating judicial supremacy through containment and conversion

The American Principles Project has a released a scholars' statement on resistance to Obergefell, and the Campaign for American Principles has put out a related "Call to Action." There is an interesting difference between the two that jumped out at me. 

The Call to Action includes a paragraph that acknowledges the supremacy of the Supreme Court within the federal judicial system, even while differentiating that supremacy from other ways of understanding judicial supremacy:

The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.

That paragraph seems just right, though I did not see any corresponding acknowledgment of intra-judicial supremacy in the scholars' statement. And the pledge at the end of the call to action, as well as the request of officeholders at the end of scholars' statement, includes a position that in tension with the idea that "the Supreme Court is supreme in the federal judicial system." 

The pledge in the call to action asks presidential candidates to "refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as precedent." And the scholars' statement calls on "all federal and state officeholders ... to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case." 

In legal terms, these statements call for the rejection of vertical stare decisis. This phrase captures the notion that the decisions of a superior appellate court create precedent that is binding on lower courts within the system. This idea that Supreme Court decisions create binding precedents for all other courts in the United States deciding questions of federal law is a widely accepted feature contributing to what makes the Supreme Court "supreme in the federal judicial system."

The vertical stare decisis effect of Supreme Court decisions is largely, though not entirely, uncontroversial. Another way of thinking about the Supreme Court's supremacy focuses on the Court's authority to exercise appellate jurisdiction to reverse decisions that depart from its precedents.

There is not much practical difference between these two positions at the moment because the Supreme Court's appellate jurisdiction is pretty expansive. But a practical difference could emerge if the Supreme Court's appellate jurisdiction were taken away.

As long as the Supreme Court's appellate jurisdiction remains intact, those calling for resistance to Obergfell should recognize the practical and legal obstacles that follow from the Supreme Court's supremacy in the federal judicial system. To the extent that an officeholder's refusal to treat Obergefell as law injures the legal rights of individuals in a way redressable in federal court, the matter will end up there, and then the officeholder will lose (at least for the time being). Direct confrontation with judicial supremacy in the realm of practice therefore seems like a bad idea.

Somewhat analogous to how Lincoln approached slavery or the United States approached Communism during the Cold War, a containment strategy seems more appropriate. The idea behind containment is to limit the damage that comes from erroneous Supreme Court decisions by confining them as much as possible to the federal judicial domain and then cabining their reach through legal argument within that domain. 

Containment should be joined with an effort at conversion. Don't just oppose judicial supremacy; give judicial supremacists a better alternative. In my view, that alternative is judicial departmentalism. 

“Judicial supremacy” is a name for the claim that the Constitution means for everybody what the Supreme Court says that it means in the course of resolving a case or controversy. By contrast, “judicial departmentalism” is the idea that the Constitution means within the judicial department what the Supreme Court says it means in resolving a case or controversy.

Judicial departmentalists may disagree about details, even important details like vertical stare decisis. But their program is not entirely negative. It affirms a truly judicial form of judicial supremacy. And apart from sweeping and erroneous dicta in a few extraordinary constitutional cases, judicial departmentalism fits within our legal structure right now. In many ways, the judicial departmentalist understanding already matches the self-conception of federal judges when they are thinking like judges in normal cases rather than when they are under attack and defensively invoke judicial supremacy. Judicial departmentalists have no problem with judicial supremacy when it is truly judicial. 

So, by all means, count me in the anti-judicial supremacy camp. But join me in the judicial departmentalist camp instead.

In keeping with the structure of the scholars' statement, I conclude with a short list of take-away assertions:

1. Containment and conversion are the best way to transform "judicial supremacy" as it now exists into truly judicial supremacy. 
   
   
2. Containment and conversion to judicial departmentalism are the best way to contribute to constitutional supremacy.
   
   
3. Confrontation in the realms of theory and of law is needed. But in the realms of practice and politics, we should be content to contain and convert.