Fallible But Final: Why Justice Scalia is Wrong About the Supreme Court's Authority

Are government officials obliged to conform their conduct to Supreme Court decisions that they believe to be wrong? Recently, at an event with Princeton University Professor Robert P. George, Justice Antonin Scalia addressed this question--one that, as Ramesh Ponnuru notes, has inspired no end of debate among conservatives and libertarians concerning judicial authority.

According to a summary provided by Professor George after the event, Justice Scalia argued that "though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." (Emphasis added). In practice, Scalia's approach would allow government officials who do not believe that constitutional text or history supports a particular Supreme Court decision to refuse to conform their conduct to that decision unless and until a court orders them to do--personally.

Scalia's argument might seem appealing to some. After all, government officials take an oath to support the Constitution, not the Supreme Court's potentially erroneous interpretation of the Constitution. As I have argued elsewhere, if the law of the land is simply what the Supreme Court says it is, then the rule of law--understood as a system of rules that are understandable to all and the content of which does not depend upon any particular person or group of people--is reduced to the rule of five people in robes.

Upon closer examination, however, Scalia's argument fails to convince. To make a government official's obligation to adhere to principles set forth in a Supreme Court decision contingent upon whether he or she believes that decision to be warranted by the text or original understanding of the Constitution would permit officials to act as the sole judges of the legal limits of their own authority--by removing the judiciary as an independent and effective check on unconstitutional government conduct in cases of earnest constitutional disagreement.

The Framers recognized that legislators and executive officials, much like other human beings, are not impartial judges of their own conduct, and they established an independent judiciary in part to serve as a last place of redress when government officials abuse their power. The judiciary is relatively insulated from short-term majoritarian pressures and thus is less likely than the political branches to blindly accept take the majority's view of the rights of individuals. Accordingly, as Alexander Hamilton observed in Federalist 78, judges are uniquely suited to:

[G]uard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which... occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Allowing government officials to refuse to comply with Supreme Court rulings that they view as wrong--even grievously wrong-until they are bound by a court order directed to them personally would dramatically reduce the judiciary's capacity to serve as a bulwark against such "innovations" and oppression.

A couple of decisions cited favorably by Justice Scalia (and which he joined) illustrate the dangers of his approach. Texas v. Johnson (1989), in which the Court held that Texas could not prosecute people for desecrating the American flag, and Citizens United v. F.E.C. (2010), invalidating a provision of a campaign finance law that permitted the government to ban corporations and labor unions from spending money on electoral speech, saw the Court defending First Amendment rights against substantial legislative majorities. Johnson inspired a number of efforts to pass a constitutional amendment that would allow the government to criminalize flag desecration; hardly a week goes by in which politicians and pundits do not criticize Citizens United. Scalia defends each of these decisions, and I believe that he is correct to do so. But neither of them are incontestably correct, and it is easy to imagine how government officials might come to the conclusion that they are not. Scalia's approach would give such officials cover to criminalize broad swaths of political speech.

Or take District of Columbia v. Heller (2008), in which the Court held that the Second Amendment protects an individual right to keep and bear arms in self-defense. This decision, together with the Court's subsequent decision in McDonald v. City of Chicago (2010), holding the right to keep and bear arms applicable to the states, has met with intense resistance from government officials in many jurisdictions who are determined to relegate the Second Amendment to second-class constitutional status through burdensome regulations, where they cannot ban weapons outright. In the wake of a number of high-profile mass shootings, President Obama has not only denounced Congress for its failure to take action on gun violence but suggested that he might take executive action on his own. Scalia's opinion for the Court in Heller is a triumph of originalist judicial engagement--a meticulous exploration of the right to bear arms that lays bare its roots in the natural right to defend oneself and makes plain that judges evaluating gun control laws must "elevate[] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home," rather that deciding on a case-by-case basis whether that right is worth insisting upon. But Heller is worth little if government officials consider themselves free to ignore the Court's decision if they believe it to be erroneous--and many do.

It is easy to criticize the Court when it errs--as it undoubtedly (and sometimes tragically) does upon occasion. But it is vastly more difficult to imagine how a functioning rule of law could be preserved if only Supreme Court decisions universally deemed correct on originalist grounds bind government officials who are not parties to the case. The very cases that Scalia invokes disclose the need for an independent judiciary to serve as a final check against abuses of government power. If that check is to be effective, the highest court in the nation must have the authority Scalia would deny it--to bind recalcitrant officials who earnestly believe that the Court got it wrong.