Bonus 41: What Does It Mean To Be "Bound" by a Supreme Court Decision?

Today's bonus issue walks through why the answer to this question is messier (and more revealing about the Supreme Court's institutional role and authority) than it might seem at first blush

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. Given that fall semester classes started this week at UT, I thought I’d use today’s bonus issue for a bit of an unusual topic: What it means to be “bound” by a Supreme Court decision. It turns out that what I’ve always viewed as the answer is a bit messier than might appear at first blush (partly because of the different ways in which actors can be “bound” by a judicial decision), but also very revealing about the Court’s structural role in our system—and the extent to which that role is not necessarily compelled by the text of the Constitution.

To make a long story short(er), for reasons I elaborate upon below the fold, I think Justice Jackson had it exactly right in 1953, when he wrote about the Court that “We are not final because we are infallible, but we are infallible only because we are final.” It’s the Court’s structural finality, as much as anything else, that makes it “supreme.” And that’s why public support (or at least the absence of mass public opposition) to the Court is so central to the Court’s supremacy—and why Congress’s power to regulate that finality (by controlling at least much of the Court’s appellate jurisdiction), is, or at least could be, such an important check on the Court.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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When I ask my students the question that is the title of today’s post, I usually give them the following passage from Cooper v. Aaron—the landmark 1958 ruling in which the Supreme Court reprimanded school board officials in Little Rock for failing to desegregate their public schools as required by the Court’s 1954 decision in Brown (Cooper is, to this day, the only opinion in the Court’s history directly signed—and not just endorsed—by all nine justices):

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” . . . [Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

There is a lot going on in this passage, especially its assertion that “States” (by which the Court means local and state legislative and executive officials, and not just judges) are bound, through the Supremacy Clause, by the Supreme Court’s interpretations of the Constitution—so that the Court’s decisions are themselves constitutional principles to which local and state officials must subscribe. To unpack it, let’s start with the binding effects of Brown itself.

Obviously, the parties to Brown were bound by the Court’s judgment. But that only covers the public schools in four jurisdictions: Topeka, Kansas; Clarendon County, South Carolina; Prince Edward County, Virginia; and New Castle County, Delaware (a fifth jurisdiction, the District of Columbia, was covered by the Court’s companion ruling in Bolling v. Sharpe). Thus, those five school districts were bound to at least formally end segregation in their primary schools, and the districts could have been held in contempt for failing to do so—where courts, including the Supreme Court, could have imposed fines and other coercive sanctions until and unless compliance was induced.

After the parties to Brown itself, the actor next-most “bound” to follow the Supreme Court’s judgment is the lower courts in those five cases. Under one piece of the “law of the case” doctrine, once an appellate court has resolved a legal question in a dispute, its resolution is conclusive for purposes of that dispute, and cannot be reopened by a lower court. Thus, if the question is who was formally bound by the Supreme Court’s ruling in Brown, the most accurate answer is the school districts that were defendants to the underlying lawsuits, and, arguably, the lower courts from which those cases originated. Those courts would be defying the Supreme Court’s formal mandate if they refused to give effect to the Court’s judgments.

But Little Rock wasn’t a party to Brown. And the lower courts in Cooper—the U.S. District Court for the Eastern District of Arkansas and the U.S. Court of Appeals for the Eighth Circuit—weren’t involved in Brown. So why were they bound to follow Brown in Cooper? Here’s where things start getting sticky. My own (perhaps idiosyncratic) view is that, at least in a formal sense, they weren’t. It would not be contempt of the Supreme Court (in the formal sense) to refuse to abide by the decrees entered in a different case. Nor, I dare say, would it have been anything close to an impeachable offense for a lower-court judge to issue a contrary ruling. Instead, the real reason why the lower courts in Cooper were “bound” to follow Brown is far more prosaic; if they didn’t, they’d be reversed. This was Justice Jackson’s point: What gives real force to the Supreme Court’s decisions is not the analytical force of the decisions themselves, but the fact that the Court has the jurisdictional authority to apply those decisions to other cases, including yours. Thus, a district court that refused to follow Brown might be held in public contempt, but the real legal remedy for its disobedience would be nothing more than the ordinary remedy of appellate reversal.

Consider, in this regard, the Supreme Court’s 2003 decision in Roper v. Simmons, in which the Court held that it violates the Eighth Amendment to execute anyone who was 16 or 17 at the time of their offense (a pair of rulings from the 1980s had held that it is unconstitutional to execute anyone who was under the age of 16 at the time of the offense, but not if they were 16 or older). In Simmons, the Missouri Supreme Court had taken it upon itself to hold that the U.S. Supreme Court’s 1989 ruling in Stanford v. Kentucky (which allowed executions of those who were 16 or 17 at the time of their offense) was no longer good law. That holding was, to be sure, Eighth Amendment-specific (focusing on “evolving standards of decency”). But it still would’ve been a pretty crazy decision for the Missouri Supreme Court to hand down if it had been formally bound by Stanford. And even though Missouri’s briefs to the U.S. Supreme Court (and Justice O’Connor’s dissent) urged the justices to slap down a misbehaving state high court, not only did the majority decline to do so; it affirmed the Missouri court.

The point is not that lower courts are thereby free to ignore what the Supreme Court says. Quite to the contrary! And the Court itself repeatedly reminds lower courts that only it can overrule one of its precedents (but see Simmons). The point, instead, is more modest: A lower court that doesn’t follow a Supreme Court precedent is committing what is, at most, a reversible error. If the lower court is reversed and still doesn’t get the message, that’s where we get closer to judicial misconduct (and where, as we’ve seen in recent years, the Supreme Court has been more … unforgiving). But a lower court that offers a plausible basis for not following a Supreme Court ruling by which it was not directly bound is not, in my view, exceeding its judicial power—especially if, once it’s reversed, it stands down.

Of course, lower courts might choose to deny to themselves such authority. Some lower courts thus refer to themselves as “strict stare decisis” courts, meaning that there are no circumstances in which they will allow themselves to anticipate an overruling of precedent by the Supreme Court (or so they claim). Fair enough. The point for present purposes is only that that’s a choice for those lower courts to make; it’s not a constitutional requirement.

Okay, so back to Cooper. The lower courts were “bound” by Brown in the sense that they lacked any plausible argument for not following it—and, thus, were assured of reversal if they didn’t. But why were executive officials in Little Rock “bound” by Brown? This is where we get to the trickiest part, for even if lower courts are at least indirectly “bound” to follow Supreme Court rulings because of the Court’s appellate jurisdiction, that doesn’t get us all the way to the Little Rock School Board. Instead, the reason why Little Rock was “bound” by Brown is one additional step removed, but no less prosaic: Because if it refused to desegregate and was sued, it was “bound” (in the logical but not legal sense) to lose. Unlike the Missouri Supreme Court’s “defiance” of Stanford (which was based on the argument that things had changed since 1989), Little Rock’s defiance of Brown had no good-faith legal basis for why the U.S. Supreme Court might come out differently in its case. There were no materially different facts and no non-frivolous arguments that the Supreme Court would reverse itself. Refusing to take Brown seriously was thus sticking a public finger in the Court’s eye—even if it wasn’t literally defying any judicial mandate by which the Little Rock School Board was bound.

And that’s the kicker: Little Rock’s behavior precipitating Cooper was widely condemned because of broad acceptance, at least outside of the South, that Brown was the law of the land. It mattered, a lot, that President Eisenhower had sent troops into Little Rock the previous year to integrate Central High School. It mattered that Congress in 1957 had finally passed a civil rights bill (for the first time since 1875). And it mattered, a lot, that the Supreme Court continued to retain jurisdiction over appeals from lower courts in desegregation cases—something that Congress perhaps had the constitutional authority to limit after and in response to Brown.

If the Supreme Court had somehow been disabled from hearing appeals in cases like Cooper; if there wasn’t significant public support for what the Court had already done in Brown; if the President was in a position where he would not get in political or constitutional trouble for refusing to use the powers of the federal government to put teeth into the Court’s rulings, then the Supreme Court’s “supremacy” might have been worth little more than the paper on which it was written. That doesn’t mean that the Court isn’t supreme (again, I’m on Team Jackson on this one). But its supremacy comes from (and depends upon) a heck of a lot more than just the text of Article VI of the Constitution—and is therefore far more fragile than we may often assume.

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We’ll be back Monday with our regular coverage of the Court. Until then, thanks for reading; I hope you have a great weekend!