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Constitutional Violations by the United States Supreme Court: Analytical Foundations

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Constitutional Violations by the United States Supreme Court: Analytical Foundations NOWLIN.DOC 10/19/2005 2:02:22 PM CONSTITUTIONAL VIOLATIONS BY THE UNITED STATES SUPREME COURT: ANALYTICAL FOUNDATIONS Jack Wade Nowlin* Legal scholarship has generally neglected the questions sur- rounding the analytical foundations of the concept of constitutional violations by courts of last resort and the implications of this concept for traditional debates over the judicial power between proponents of judicial restraint and activism. In this article, Professor Nowlin ex- amines these questions and concludes that constitutions can limit courts of last resort and, thus, that the U.S. Constitution can limit the U.S. Supreme Court. Significantly, the purposes of constitutions in- clude creating and limiting governmental institutions such as courts of last resort, and the U.S. Constitution both created and limits the U.S. Supreme Court. Constitutional limits on the federal judicial power likely extend beyond familiar constraints on federal jurisdiction to the use of interpretive methodologies and thus encompass questions of the proper judicial role as activist or restrained. Professor Nowlin further concludes that the Court’s finality of decision in no sense entails a substantive infallibility, and, therefore, the Court’s supreme self-affirmation of the constitutionality of its own decisions does not finally resolve the question of whether the Court has violated the Constitution. Professor Nowlin also elucidates the distinction between extra-constitutional and intra-constitutional inter- pretive authority, explaining in what manner a constitution may au- thorize and limit the interpretive authority of institutions internal to a * Associate Professor of Law and Jessie D. Puckett, Jr. Lecturer in Law, University of Missis- sippi School of Law. Ph.D., M.A., Princeton University; J.D., The University of Texas School of Law; B.A., Angelo State University. Earlier versions of aspects of this Article were presented at the annual meeting of the Southeastern Association of American Law Schools, the annual meeting of the South- ern Political Science Association, and the Robert A. Levy Fellows Workshop, George Mason Univer- sity School of Law. The author would like to thank Robert P. George, George W. Downs, and Gerard V. Bradley for their comments and suggestions on this work in a very early stage of its development. For their comments at later stages in the project, the author would like to thank Matthew Hall, Ronald J. Rychlak, John Czarnetzky, and Timothy Hall. The author would also like to thank the participants of the Levy Fellows workshop, including Daniel Polsby, Maxwell L. Stearns, D. Bruce Johnsen, Lloyd R. Cohen, and Donald Kochan. 1123 NOWLIN.DOC 10/19/2005 2:02:22 PM 1124 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2005 constitutional system. Professor Nowlin also outlines a conceptual framework for analyzing judicial constitutional violations, including violations via exceeding structural authority, contravening Rule-of- Law norms, invoking judicial review pretextually, and infringing other substantive constitutional norms. In sum, the concept of (un)constitutionality is as applicable to courts of last resort as it is to other governmental institutions or actors within a constitutional sys- tem and has important implications for traditional debates about the judicial power. TABLE OF CONTENTS I. Introduction ........................................................................................1125 II. A “Dangerous” Branch? ...................................................................1130 III. The Concept of Constitutional Violations by the Supreme Court....................................................................................1133 A. The Supreme Court and Constitutional Limits .........................1133 B. A Basic Purpose of Constitutions: Placing Limits on Governmental Institutions ...........................................................1133 C. Widely Recognized Constitutional Limits on Federal Courts: Federal Jurisdiction...........................................1136 D. Additional Constitutional Limits on the Judicial Power: Judicial Interpretive Authority and Methodology .......1139 E. Are Courts of Last Resort Infallible or Merely Final? .............1142 1. Judicial Supremacy and the Lawyer’s Intuition.....................1142 2. Four Views of Judicial Infallibility ..........................................1144 a. Formal-Procedural Infallibility..........................................1145 b. Simple Substantive Infallibility..........................................1146 c. Procedural-as-Substantive Infallibility..............................1147 d. “Quasi-Legislative” Substantive Infallibility in the Open Texture ...........................................................1151 3. Conventional Rejection of Substantive Forms of Infallibility .............................................................................1156 4. Predictive and Critical Statements of (Un)Constitutionality ...............................................................1157 5. Some Implications of Substantive Judicial Fallibility for the Concept of Judicial Constitutional Violations ...................................................................................1159 F. Constitutional Limits on Interpretive Authority and Interpretive Methodology: Special Problems.....................1160 1. Can a Constitution Restrict Interpretive Authority and Interpretive Methodology over the Constitution? ................1160 2. Extra-Constitutional and Intra-Constitutional Interpretive Authority and Methodology Distinguished......1163 3. Three Additional Sources of Debate ......................................1166 NOWLIN.DOC 10/19/2005 2:02:22 PM No. 5] SUPREME COURT CONSTITUTIONAL VIOLATIONS 1125 a. Easy Cases: Limits on Intra-Constitutional Interpretive Authority in the Settled Core of the Constitution.........................................................................1167 b. Hard Cases: Limits on Intra-Constitutional Interpretive Authority in the Open Texture of the Constitution.........................................................................1170 c. Questions of Constitutional Obligation............................1171 i. The Social Fact Basis of Internal Legal Authority .........1171 ii. Four Senses of the Term “Obligation”.............................1174 iii. Implications of Legal and Moral Obligations to Adhere to a Constitution’s Resolution of Intra- Constitutional Interpretive Authority .............................1178 d. The Limited Role of Direct Normative Argument in Determining Intra-Constitutional Interpretive Authority........................................................1181 4. Constitutional Limits on the Supreme Court’s Interpretive Authority and Use of Interpretive Methodologies ...........................................................................1184 G. Constitutional Limits on the Supreme Court.............................1187 IV. Constitutional Violations by the Supreme Court: A Typology..........................................................................................1188 A. The Concept of “Injustice in Law” and Judicial Constitutional Limits ....................................................................1188 B. Four Forms of Constitutional Violations by the Supreme Court ..............................................................................1189 1. Violation by Exceeding Structural Authority ........................1189 2. Violation of Rule of Law Norms .............................................1190 3. Violation by Prextextual or Bad Faith Use of Judicial Review .....................................................................1191 4. Violation of Other Substantive Constitutional Norms .........1192 C. Implications of the Typology for the Concept of Constitutional Violations by the Supreme Court ......................1193 V. Some Remaining Questions ..............................................................1194 VI. Conclusion...........................................................................................1196 I. INTRODUCTION Questions relating to the proper use and scope of the judicial power in the American constitutional design remain perennial subjects of in- quiry among legal scholars. Typically, the more contentious aspects of these inquiries revolve around questions of federal constitutional inter- pretation and are driven by debates over rival conceptions of the proper judicial role and rival views of the legitimate range of interpretive meth- odologies that courts may deploy to ascribe meaning to the Constitution. These debates are often motivated by the desire to shape the decisional NOWLIN.DOC 10/19/2005 2:02:22 PM 1126 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2005 practices of the U.S. Supreme Court and, accordingly, they often inter- sect with substantive normative debates about controversial moral- political issues with constitutional dimensions such as abortion1 or the death penalty.2 Notably, recent decisions of the Supreme Court, such as Bush v. Gore,3 have raised these perennial questions about the judicial power in a starker and more pointed form.4 This article will concentrate on a neglected, but highly significant, sub-question of this field of inquiry into the proper use and scope of the judicial power: whether the U.S. Supreme Court can itself be said to vio- late the Constitution via a sufficiently improper use of the power of judi- cial review of constitutional questions to uphold or invalidate a law or other act of government.
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