America's Unwritten Constitution: The Precedents and Principles We Live By (39 page)

These areas form an important part of America’s unwritten Constitution. As with other elements of this unwritten Constitution, these areas are not clearly mapped in the document’s express words—and yet (as with other elements) they exist in close proximity to the document. In one sense, judicial sub-rules by definition range beyond and fall short of the best interpretation of the written Constitution, if the document is read in an institutional vacuum. In another sense, however, the document envisions and contemplates such areas, for they arise as a result of features built into the text itself—the affirmative scope and limitations on “judicial Power,” the essential structural attributes of federal courts, the need for “one supreme Court” to supervise and suitably guide all “inferior” federal courts, and the intricate institutional relationships between the federal judiciary and other institutions created or contemplated by the Constitution.

In the case of one-party gerrymandering, whatever judicial underprotection now exists is largely harmless, because other features of modern American government have limited the potential damage. Any party seeking to maximize the number of seats it can win must minimize the number of “wasted votes” it receives—that is, votes above the necessary victory
threshold of 50 percent plus one in any district and votes going to losing candidates. In other words, optimal vote maximization means that almost every vote a party gets must go to a winning candidate (because all votes going to losers are ineffectual), and that no party candidate should win by a landslide. (If any candidate does win big, then all the extra votes above the 50 percent mark are “wasted” votes that could have gone to help some other party candidate win in some other ingeniously drawn district.) But this mathematical reality means that any successful partisan gerrymander will need to tack very close to the political wind, a highly dangerous maneuver. If some modest external event arises after district lines are drawn—a party scandal, an economic downturn, a shift in district demographics—then a party could end up losing a slew of close races rather than winning them all. Parties are understandably reluctant to play the game too fine, and this reluctance makes it difficult for one party to consistently impose “wasted” votes on the other party without suffering lots of “wasted” votes itself.

Moreover, each major party typically includes powerful legislative incumbents, and every incumbent prefers to win by a landslide rather than a squeaker. Landslides facilitate fundraising and help launch future campaigns for still higher office. But landslides also waste votes, from the party’s point of view. Hence, both one-party gerrymanders and incumbent-protective gerrymanders may be troubling in theory, but in practice they tend to tug hard in opposite directions, resulting in district maps that do not seriously dishonor the deep principles of republican government. Judicial intervention is thus largely unnecessary, because the political system regulates itself tolerably well with regard to gerrymandering.
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This was not true of the 1960s right-to-vote and malapportionment cases. Where certain persons are literally disfranchised, how are they supposed to solve the problem themselves through politics? By definition, disfranchised persons do not, as a rule, vote on whether they should get the vote in future elections, and incumbent politicos have attenuated incentives to protect the interests of nonvoters. In situations of gross malapportionment, the political power structure is itself part of the problem and thus cannot be relied upon to be part of the solution. In
Baker v. Carr
, Justice Tom C. Clark’s concurring opinion stressed that the citizenry of Tennessee had no effective way to combat the state’s gross malapportionment.
In particular, the state lacked an initiative process whereby a statewide majority of disgruntled voters could have changed the corrupt status quo. Electoral reform in Tennessee perversely required assistance from the very state legislature whose leaders were the chief architects and beneficiaries of the state’s rotten system of vote-counting. Thus, in right-to-vote cases such as
Harper
and malapportionment cases such as
Baker
and
Reynolds
, relief needed to come from outside the voting system itself—from the federal government as the proper guarantor of state republican government. In gerrymandering situations, by contrast, the political system adequately polices itself, and thus there is less pressing need for bold judicial initiatives.

None of the considerations cataloged in the preceding paragraphs are explicitly laid out in any clear constitutional clause. Nevertheless, they flow from a careful understanding of the written and unwritten Constitution as a whole—from the implicit premises of the document; from the revitalized ideals of republicanism enacted in the amendment process during Reconstruction; from the matrix of institutions set up by the Constitution; from America’s actual lived practices of voting and conducting elections; and from actual judicial doctrine rooted, by and large, in a proper vision of Article III “judicial Power.”

IT REMAINS TO ASK
the biggest set of questions about Article III “judicial Power”: In general, how much weight, and what kind of weight, should today’s Article III judges in the proper exercise of their “judicial Power” give to past Article III exercises of “judicial Power”? In particular, when and how should the Court overrule itself? These questions are particularly momentous because many of the most famous decisions of the modern era—for instance,
Brown v. Board of Education, Mapp v. Ohio, Gideon v. Wainwright, Miranda v. Arizona, Roe v. Wade
, and
Lawrence v. Texas
—are rulings that themselves broke with prior precedent and/or cases that prominent critics have urged overruling.

In seeking to answer the biggest questions about when the Supreme Court should overrule itself, some self-described adherents of the written Constitution as originally understood have offered accounts of precedent’s
proper place that largely begin and end outside the text. Justice Scalia is the most famous example. Both on and off the Court—most famously in a 1989 published lecture on his philosophy of “originalism”—Scalia has argued that judges should generally follow the Constitution’s original public meaning. Invoking the vision of John Marshall, Scalia has reminded us that the Constitution is America’s “paramount law” and that this law has “a fixed meaning.” But apparently Scalia also believes that judges need not follow this paramount law, whose meaning was fixed by its original understanding, when this paramount law sharply contradicts settled precedent. Any other approach would be impractical, he has argued.
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Huh? If the touchstone here is pure practicality, it is hard to see why pure practicality cannot also be the touchstone for all issues of constitutional interpretation across the board—text and original understanding be damned! Conversely, if Scalia believes that as a judge he is generally obliged to follow the supreme law, and that this law is the written Constitution as originally understood, then by artificially limiting the domain of his obligation to areas that are not settled by past precedent, Scalia would seem to be violating his own legal obligations as he understands them. Scalia errs here because he has started his thinking in the wrong place—with himself and his own philosophy—and because he has approached the written Constitution with an unsubtle understanding of how its words were actually designed to work over time.

Of course, the proper place for a faithful constitutionalist to begin analysis of precedent’s weight—or any other constitutional question, for that matter—is the Constitution itself. When we start here, we shall see a pattern that by now should be familiar. The document answers some of the largest questions about precedent’s weight, but leaves other questions indeterminate over a certain range. Within that range, the actual practice of American government—in particular, the practice of Article III judges themselves—has plausibly and usefully glossed the text in a manner that is invited by the text, albeit not compelled by the text. In other words, although the text does not explicitly say that this useful and plausible gloss should control, neither does the text say that it shouldn’t. If we choose to attend to how the gloss actually operates, the overall Article III system works, and works well. Simply put, if we approach the text from the proper
angle and with the proper interpretive methods, we can answer key questions in a way that does justice to the text itself—that is faithful to the letter and spirit of the text and that enables the text to work in court and on the ground.

CONSIDER FIRST THE “VERTICAL” ELEMENT OF PRECEDENT
—the authority of some judges at the top of the judicial pyramid to impose their legal vision on judges below. The Judicial Article authorizes legal and equitable cases arising under “this Constitution” to be resolved by “one supreme Court” which presides over various “inferior” federal courts and state courts. The big idea here is that “inferior” courts should generally be bound by the interpretations, implementing frameworks, specific holdings, precedential implications, and remedial precepts—the doctrine—of the Supremes. This is so even if lower courts think that the high court is wrong about the general meaning of the written Constitution, or about the best sub-rules for implementing the document, or about how the specific case at hand or a more general category of cases must be decided, or about the proper set of legally applicable remedies. Lower courts are free to say that the high court has erred, and to offer their reasons for so believing, but disagreement does not justify a general right of disobedience. An inferior may tell his boss that she is wrong, but must nevertheless follow her instructions.

But what should a faithful inferior do when his superior seems to be in the process of changing her mind? Specifically, if the Supreme Court in case A clearly says X, but later cases B, C, and D, involving issues related to but not identical with the issue in case A, seem to point away from X, then what should an inferior court do when a case legally identical to case A—“on all fours,” as lawyers would say—arises? Should it matter if none of the justices who joined the Court majority in case A is still on the Court, whereas several of the newest justices, prior to their appointment to the Court, openly criticized case A and called for its overruling?

On the one hand, the three most recent cases may well signal that principle X no longer commands the support of a current Court majority. Indeed, close analysis may suggest that cases B, C, and D were designed to lay the foundation for overruling case A, and thus the time is now ripe to declare that A no longer fits the legal landscape. Plus, the off-the-bench
comments of several new justices are surely straws in the wind for any lower-court judge seeking to avoid the embarrassment of being publicly reversed by the Supreme Court. Beyond embarrassment, wouldn’t legal efficiency be served if the lower-court judge made his best guess about what the Supreme Court today would actually do in the case at hand on appeal?

On the other hand, the “judicial Power” is vested in courts, not in individual justices speaking in other capacities. And though there may be hints in cases B, C, and D, let’s assume that the Court did not squarely say in any of these cases that case A was being overruled, or clearly announce that principle X was no longer good law. Unless and until the Court itself speaks clearly, principle X is arguably still the Court doctrine that should be followed.

Both of these views are textually plausible. Both reflect reasonable understandings of the supremacy of the Supreme Court over inferior federal courts. One view stresses the current supremacy of the sitting justices; the other view focuses on the supremacy of past Supreme Court rulings. If a lower-court judge had only the written Constitution to guide him, the matter might well be indeterminate.

But precedent has in fact glossed the text on this very question. The Court itself has clearly held that every past Court ruling must be followed in legally identical cases until the Supreme Court itself overrules the old case in explicit language. Thus, a dutiful inferior court should: (1) note the apparent tension between case A and cases B, C, and D—ideally in a clear opinion signaling the need for eventual Supreme Court reconsideration of this area of law; (2) follow case A and principle X if the case at hand is indeed on all fours with A; and (3) leave the rest to the Supreme Court. And to highlight the fact that not all reversals are shameful, the Court in one careful 2005 case,
Eberhart v. United States
, openly praised the lower court for following this tripartite script even as the Court overruled its own prior case law—and thus reversed its faithful lieutenant!
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SO MUCH FOR VERTICAL PRECEDENT.
“Horizontal” precedent—the amount of weight and the kind of weight that past Supreme Court exercises of “judicial Power” should carry in the current Supreme Court itself—raises its own distinctive set of issues. Once again, a careful look at
the document itself provides the broad outlines of a proper approach, even though the text does not provide all the answers.

The Judicial Article envisions the Court as a continuous body. The Court never automatically turns over, as the House does every two years and the presidency does every four. A continuing body would seem intentionally structured so as to give some weight to its past and some thought to its future. It does not invent itself anew each day. Given the Court’s clear constitutional design, today’s justices may properly give past Court decisions a rebuttable presumption of correctness. A past case may control until proved wrong, with those challenging it saddled with the burden of proof. A justice may also give a precedent persuasive weight in deciding whether the burden is met. Even if her first reaction is that the precedent wrongly interpreted the Constitution, the very fact of the prior decision may persuade her that her first reaction is mistaken: If John Marshall and his brethren thought X, perhaps X is right after all, despite initial appearances to the contrary. (For similar reasons, a deferential justice might choose to give Congress, a coequal branch, the benefit of the doubt in certain cases.)