Alexander, Schauer 2000 Defending Judicial Supremacy: A Reply

Summary

... we argued that a central moral function of law is to settle[ment of] what ought to be done. [emphasis added]
... our central claim is that the value of settlement for settlement's sake is such that bodies other than the Supreme Court, especially lower courts, state legislatures, Congress, and the President, ought to take the resolution as authoritative even as these bodies continue to disagree with the substance of the resolution. [emphasis added]
[Repeatedly Flawed Example:] If Bill Clinton recognizes the value of set- tlement in deferring to the authority of the Twenty-Second Amendment in refusing to run for a third term, then so too, we argue, should he recognize the value of settlement in refusing to sign, for example, a Communications Decency Act explicitly contravening a recent and unanimous Supreme Court interpretation of the First Amendment. [Legislative and Executive overriding Supreme Court decision...and why not? Legislative overrides Executive at will.] [Constitutional Amendments and Supreme Court decisions are not comparables Dred Scott and Civil War Amendments demonstrates that the Supreme Court is subservient to Constitutional Amendments even while claiming the power of interpretation.] (471)
In cases in which a Supreme Court interpretation is believed by the political branches to be not only incorrect but also iniqui- tous or bad policy, should settlement then take a back seat to substantive correctness? From the standpoint of institutional design, which is the standpoint that pervades our project, we continue to believe that the answer is "no."

2023-10-18: Alexander, Larry; Schauer, Frederick Defending Judicial Supremacy: A Reply (PDF) 2000

• In On Extrajudicial Constitutional Interpretation, we put forth and defended the position that the Supreme Court's interpretations of the Constitution should be taken by all other officials, judicial and non-judicial, as having an authoritative status equivalent to the Constitution itself.
• ... we argued that a central moral function of law is to settle[ment of] what ought to be done. [emphasis added]
• The undeniable fact that a judicial interpretation of an attempted legal settlement may be incorrect does not and should not call into question its authority, for it is inherent in all legal settlements of what ought to be done that such settlements claim authority even if those subject to them believe the settlements to be morally and legally mistaken
• I. The Nature of the Question
• A. The Preconstitutional Constitution (459)
• An essential preliminary is to consider the nature of the question we are asking when we ask whether the Supreme Court should be the supreme interpreter of the Constitution ....
• Consequently, we accept that such a role for the Supreme Court cannot itself be based on the Constitution textually or historically understood.
• ... we are arguing for a preconstitutional norm, a norm that determines not what was adopted then, but how what was adopted then should be regarded now.
• The Constitution's authority--its status as fundamental law--ultimately rests not on facts about the past, but on the Constitution's acceptance as authoritative in the present.
• ... the central point is that the status of a legal text cannot ulimately, and cannot without infinite regress, be determined by that text itself. In order to determine a text's status we must go outside it.
• The foregoing explains why we refer to the question we ask as preconstitutional, in the logical rather than the temporal sense.
• And because the question of whose interpretations of the text are to be taken as authoritative is especially important with respect to a text that is both old and often linguistically indeterminate, the preconstitutional question of interpretive su- premacy strikes us, and indeed many others, as being the most important of a larger array of preconstitutional questions.
• Our inquiry is into the conditions that determine what the Constitu- tion is to be understood as meaning, and it will be of no help to presuppose a meaning as a way of answering the question of what the meaning is.
• B. The Nature of the Inquiry (464)
• Once we put aside the unhelpfully self-referencing possibility that we should look to the Constitution itself, where should we look for guidance in answering the question about interpretive authority?
• In describing the inquiry as non-historical, we meant to claim, and still mean to claim, that reliance on the authority of history to answer the preconstitutional question has the same status as relying on the constitutional text, and is thus ultimately question-begging.
• That what Madison and others thought does not settle the question is premised, again, on the problem of self-reference.
• ... what makes [the] constitution [of 1787] ... the Constitution of the United States is not something that is contained in the document, and not something that could have been determined in 1787, but is rather something that is determined now by the American people.
• If what makes the 1787 Constitution the 2000 Constitution is dependent on 2000 social facts, then so is the 2000 status of what James Madison and the other framers intended in 1787 dependent on a 2000 decision and not on a 1787 decision.
• ... the point about preconstitutionality is as germane to the question of the authority of history as it is to the authority of the text.
• Rather, we are advocating that we obtain the Cooper rule (or recognize the existence and validity of the Cooper rule) in the same way that we have obtained the original Constitution itself, namely, by accepting it as authoritative.
• And if that is so, then that makes the Cooper rule as "constitutional" as the Constitution itself.
• That history is not authoritative does not make it non-authoritatively irrelevant.
• But the central point is that what we learn from history we learn because of its content and not because of its authority. That Madison said something ought to be relevant to our in- quiry, but it does not come close to settling the question.
• ... our preconstitutional question is a question of normative institutional design--of what institutional designs ought to be adopted-- ....
• To claim that our inquiry is not empirical was also then and is now a mistake. Rather, the proper claim is that the status of the question--its preconstitutional nature--is itself a logical and not a historical or empirical matter. But once the status of the question is established, and we are then trying to determine whether this or that institutional design is better, it would be folly to ignore the evidence that we might obtain from the external world, including evidence that we might get from history.
• II. The Settlement Function and its Optimal Location (467)
• A. Is Settlement Overrated?
• Once we turn from meta-questions about the nature of the question to the question itself, we arrive at our claim that one of the chief functions of law in general, and constitutional law in particular, is to provide a degree of coordinated settlement for settlement's sake of what is to be done.
• ... thus providing for those in first-order disagreement a second-order resolution of that disagreement that will make it possible for decision to be made, actions to be coordinated, and life to go on.
• Rather, our argument is premised on the special functions that law serves, and that agreement and settlement appear to be the peculiar and special province of law, and the peculiar and special province of constitutions that have been written down and understood in substantially law-like ways. [What are the "special functions" other than "to settle[ment of] what ought to be done."]
• The authority of law, when it is taken to be authoritative, provides, for those who disagree with the terms of the settlement, content-independent reason for obeying the terms of the settlement even when they disagree with their substance. [What is the "authority of law" other than the police power]
• ... the text of the Constitution itself is strong testimony for ... the proposition that the constraints of settlement for settlement's sake are often thought, ... to be more valuable than the value that comes from greater flexibility in the face of changing facts about the world, and changing views ...
• ... our central claim is that the value of settlement for settlement's sake is such that bodies other than the Supreme Court, especially lower courts, state legislatures, Congress, and the President, ought to take the resolution as authoritative even as these bodies continue to disagree with the substance of the resolution. [emphasis added]
• If Bill Clinton recognizes the value of set- tlement in deferring to the authority of the Twenty-Second Amendment in refusing to run for a third term, then so too, we argue, should he recognize the value of settlement in refusing to sign, for example, a Communications Decency Act explicitly contravening a recent and unanimous Supreme Court interpretation of the First Amendment. [Legislative and Executive overriding Supreme Court decision...and why not? Legislative overrides Executive at will.] [Constitutional Amendments and Supreme Court decisions are not comparables Dred Scott and Civil War Amendments demonstrates that the Supreme Court is subservient to Constitutional Amendments even while claiming the power of interpretation.] (471)
• If the argument from settlement fails, then it is hard to explain most of the Constitution.
• But if the argument from settlement succeeds, then it is an argument that supports the existence of a single authoritative interpreter as strongly as it supports a single authoritative Constitution. [Argument does not determine the order. Authors suggest: Amendment, Supreme Court, Legislature. Why not: Amendment, Legislature, Supreme Court.]
• [Note 50 on Lincoln and Dred Scott:] We argue that Lincoln was ... right to disobey the Court [Why was Lincoln right per their argumentl?] The position of the authority and that of the agent subject to that authority arc different. They demand that the subject obey even if the subject is convinced that the balance of reasons, ..., favors disobedience. As a result, there appears to be no inconsistency in saying that the Court, from its perspective, was right to demand obedience from Lincoln, and that Lincoln, from his, was morally right to disobey. [Does morally overrule the Supreme Court?]
• To see judicial supremacy in settlement terms, as we do, is thus to see constitutional law as serving an essentially stabilizing and constraining function.
• But if stability and constraint are central to explaining constitutionalism itself, then the argument for a single authoritative interpreter is an argument that flows directly from the deepest values of constitutionalism. [If Congress and the Court disagree, the issue is so contentious that settlement is not possible. Compare the fates/results of Brown, Reynolds v. Sims and Roe and perhaps Bruen]
• B. Are Courts the Best Settlers? (473)
• ... why does it follow that the assignment [for settlement] should be given to the Supreme Court rather than to some other institution?
• ... when the stakes consist only of the correctness of an interpretation of an earlier settlement, the value of settlement appears to outweigh the value of interpretive correctness. [might mean to limit to "When the disagreement is merely with the Supreme Court's interpretation of a constitutional rule and not with the substantive result ...."]
• In cases in which a Supreme Court interpretation is believed by the political branches to be not only incorrect but also iniquitous or bad policy, should settlement then take a back seat to substantive correctness? From the standpoint of institutional design, which is the standpoint that pervades our project, we continue to believe that the answer is "no."
• One reason for believing that the Supreme Court rather than Congress or the Executive is the best institution to wield the settlement authority, however, is the Court's relative insula- tion from political winds, a clear virtue unless one holds the view that constitutional interpretation is and should be no more than the expression of contemporary values and policies. [But "the 2000 Constitution is dependent on 2000 social facts" see above]
• The Court cannot pick its agenda, although Congress can. [what is a writ of certiorari (1925)...they will remember on page 478 "the certiorari process and procedures, only 94 cases, as compared with the 7015". When did members start solicting cases with suggested lines of argument in dissents.]
• III. What is the Supreme Court for? (478)
• The vision of the Court as constitutional interpreter, which is our vision, ... is a vision that sees the Court being much more concerned with instructing, guiding, helping, and, indeed, ordering other bodies and other branches ....
• And if these are or should be the Court's concerns, then we would expect to see more clear rules, fewer divided judgments without a majority opinion, more concern by the Justices for the Court speaking with a single voice than with making their own points or even with insisting on their own view about the outcome, even more concern with stare decisis, and in general more Supreme Court behavior befitting the law-maker that the Supreme Court undeniably is, and in our judgment inevitably must be.
• Conclusion (481)
• But although there are other candidates, none of them contain the institutional constraints that could enable them to speak with the same degree of consistency as the Supreme Court.