Meese’s Quixotic Advice Is Best Ignored

Atty. Gen. Edwin Meese III stirred a caldron of critical reaction last week by declaring that U.S. Supreme Court decisions do “not establish a ‘supreme law of the land’ that is binding on all persons and parts of government henceforth and forevermore.”

Meese then said that legislators, for example, might appropriately propose bills contrary to Supreme Court decisions because only the Constitution is the law--not judicial decisions.

Contrary to some of the outraged critics of Meese’s remarks, I do not consider the legal position he advances to be either a historical novelty or a significant departure from constitutional doctrine. However, the course of action he urges on other federal, and perhaps state and local, officials is wasteful and foolhardy.

The position taken by Meese is known as “departmentalism” and it is attributed to Thomas Jefferson. It holds that while the courts may refuse to enforce a statute on constitutional grounds, this does not require officials of the executive and legislative branches or, perhaps, the states, to follow their holding or rationale in the future. For example, in reference to the Dred Scott decision upholding slavery, President Abraham Lincoln affirmed the power of the court to declare that Scott himself must remain a slave but denied that the decision was a “political rule binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.” Similarly, after the Supreme Court struck down some of his New Deal legislation, President Franklin D. Roosevelt was prepared to pack the court and, quoting Lincoln, to urge that “the policy of the government upon vital questions” was not “irrevocably fixed” by Supreme Court decisions.

Meese does not suggest, as Andrew Jackson is reported to have considered, that the executive branch simply refuse to enforce or to comply with federal court judgments in a given case. This would be a truly radical proposal that would lead to a constitutional crisis. Rather, he suggests only that officials be guided by their own view of the Constitution--instead of by that of the Supreme Court--in making future decisions.

The Constitution itself declares, in Article VI, that it is the “supreme law of the land.” In the 1958 case of Cooper vs. Aaron, the court reasoned that since this is so and, as Marbury vs. Madison had held in 1803, the Supreme Court is the final arbiter of what the Constitution means, it followed that the court’s constitutional holdings are themselves “the supreme law of the land.” This notion is hardly “settled” doctrine as the court suggested in Cooper, and is arguably bad law. In Marbury the court noted that courts, as well as legislatures, are bound by the Constitution and must defer to its pronouncements. Certainly the Supreme Court would not claim that it is entitled to openly defy the terms of the Constitution. So it follows that only the Constitution, and not Supreme Court decisions, are the “supreme law” and Meese is technically correct.

However, practical considerations render Meese’s technically “right” suggestion of disregard of Supreme Court decisions unwise. In the Cooper case, Arkansas was determined to ignore the Supreme Court’s desegregation holding in Brown vs. Board of Education. Arkansas officials argued that not having been a party to that case, the state was not “bound” by it. Predictably, Arkansas was then ordered by the federal courts--including, ultimately, the Supreme Court--to comply. Whether or not Arkansas was bound by Brown, as the Supreme Court held, thus became academic--it was clearly bound by the holding in Cooper.

Notwithstanding the quixotic exhortations of Meese, federal, state and local officials have neither the budget nor the inclination to bash their heads against the stone wall of federal court obduracy in case after losing case. If a Supreme Court decision in case A is not technically “the law of the land” in future cases but is pertinent, then it is such a good predictor of how cases B, C and D will be decided that there is no reason to litigate those cases or to act in a way that will give rise to such litigation.

Unless Meese also expects the Reagan appointees on the subordinate federal courts to ignore Supreme Court pronouncements (he has not urged this extreme position), then executive and legislative officials know that if they ignore the Supreme Court, they are only a motion away from having their actions successfully challenged in a local district court and perhaps ultimately having an angry Supreme Court declare an even more damaging precedent in their case.

The only time it makes sense for officials to act contrary to a Supreme Court holding is when they have reason to believe that the court may reverse itself and want to give it an opportunity to do so. Otherwise, the much more sensible course of action for officials who are dissatisfied with a Supreme Court holding is, far from ignoring it, to try hard to discern the decision’s essence and, having done so, to plot a course in a way that will run near, but not into, that barrier.