hon. richard e. welch, iii: should we listen to the supreme court and should the court listen to us?

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“They Will Not Open Their Ears”: Should We Listen to the Supreme Court and

Should the Court Listen to Us?

HON. RICHARD E. WELCH III

“You have an increasingly arrogant judiciary. And the question is, is there anything we the American people can do? . . . I think many lawyers will find this [proposal of Congress issuing subpoenas to federal judges to explain their decisions] a very frightening idea. They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged.”

Former Speaker of the House of Representatives Newt Gingrich, interview with Bob Schieffer, Face the Nation, December 18, 2011.

“[U]nder Gingrich’s scheme . . . judges would be deciding cases while constantly looking over their shoulder at the possibility of retaliation from politicians. If a president and majorities in Congress could simply overturn the constitutional interpretations of the Court, and if judges could be arrested for displeasing politicians . . . we would be placing our basic rights in jeopardy. The rule of law would be destroyed.”

U.S. Senator Scott Brown, Boston Globe, January 4, 2012.

t is no secret that our society has become comfortable allowing the federal courts to handle some of its most politically divisive and difficult issues. One of the more frequent occurrences in the political

culture wars is having the losing side in some legislative battle run to court in an attempt to undo the political result. The fight over the extensive federal health care reform, titled the Affordable Care Act, is a prime example.1 As soon as the law was signed, a host of cases challenging the

Associate Justice, Superior Court, Commonwealth of Massachusetts; Adjunct Professor of

Law, New England Law | Boston. This article is dedicated to the over twenty years worth of

students whom have taken my course, Federal Courts and the Federal System, particularly

those that, even at 7:00 p.m., still opened their ears. 1 See Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111‐148, 124 Stat. 119

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94 New England Law Review v. 47 | 93

constitutionality of the law were filed, and now, during an election year, the Supreme Court has decided the matter.2 Nor are the federal courts simply passive recipients of these political hot potatoes. The Supreme Court’s extraordinary efforts to take jurisdiction over the Bush v. Gore3 voting dispute springs to mind.4

This reliance upon federal judicial review has a necessary corollary: American society now unquestionably obeys most any Supreme Court ruling. Indeed, the most remarkable aspect of the Bush v. Gore decision was not its much criticized reasoning,5 but rather, the public’s firm acceptance of the Supreme Court’s role in deciding the outcome of a presidential election. As Justice Anthony Kennedy observed, “[we have] come far from the paradigm of Marbury suing Madison to get his commission.”6 We sure have. By 1803, James Madison—a man who knew a thing or two about the Constitution—and others had serious doubts about the Supreme Court’s power to declare a popularly enacted law unconstitutional.7 Now, such

(codified as amended in scattered sections of 42 U.S.C.). 2 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2608‐09 (2012) (upholding

individual mandate with five member majority, where Chief Justice Roberts’s decision termed

the mandate a tax, invalidating expansion of Medicaid as a violation of state “sovereignty”). 3 531 U.S. 98 (2000) (per curiam). 4 See Samuel Issacharoff, Political Judgments, 68 U. CHI. L. REV. 637, 638‐39 (2001) (“[T]he

Court . . . failed in the preservation of an institutional reticence to intercede in the political

thicket when other institutional actors were amply well positioned to address the claimed

harm.”). 5 See, e.g., Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV.

1093, 1093‐95 (2001); Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4, 6, 10, 13‐15,

152‐54 (2001); Laurence H. Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore From Its

Hall of Mirrors, 115 HARV. L. REV. 170, 177‐79 (2001). These authors criticize not only the

reasoning of Bush v. Gore, but also the Rehnquist Court’s tendency to assume exclusive

competence in all constitutional matters. 6 Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring). 7 Madison’s support for judicial review appeared to wax and wane over time, depending

upon the circumstances. See Ralph L. Ketcham, James Madison and Judicial Review, 8 SYRACUSE

L. REV. 158, 158 (1957) (“In the years between the opening of the Federal Convention of 1787

and Jefferson’s election to the Presidency in 1800, Madison took a bewildering number of

positions on the question of interpretation of the Constitution . . . .”). Madison’s intellectual

soul mate, Thomas Jefferson, found the view that “judges [are] the ultimate arbiters of all

constitutional questions; a very dangerous doctrine indeed, and one which would place us

under the despotism of an oligarchy.” See Thomas Jefferson, Letter to William C. Jarvis (Sept.

28, 1820), in 10 THE WRITINGS OF THOMAS JEFFERSON, 1816‐1826, at 160 (Paul Leicester Ford

ed., The Knickerbocker Press 1899). As to constitutional interpretation, he considered the

Constitution as having “made all the departments co‐equal and co‐sovereign within

themselves.” Id. See generally RAOUL BERGER, CONGRESS V. THE SUPREME COURT (1969)

(reviewing the differing views regarding judicial review among members of the constitutional

convention); KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW, 11‐13, 22‐23


2012 They Wil l Not Open Their Ears 95

judicial review is run‐of‐the‐mill. The point of this article is not to attack the firmly entrenched practice of federal judicial review.8 It would be a fool’s errand to challenge an institution that has been such a vital and beneficial part of American governance, at least since Chief Justice Stone’s famous United States v. Carolene Products, Co.9 footnote converted judicial review into a protection of the fundamental Bill of Rights guarantees and for insular and discrete minorities. It is important to remember, however, that the pendulum has swung far in regard to the Supreme Court’s power and acceptance.

The public acceptance of federal judicial review during the last half‐century and the resulting impact that federal courts have in our society have not gone unnoticed. Conservative politicians railing against federal judges is nothing new, but recently the rhetoric has increased in intensity. The two quotes that begin this article show the political divide on this issue. Newt Gingrich is correct in observing that most lawyers—never mind most students who paid attention in their high school civics class—would find his latest pronouncements attacking federal judicial review to be “frightening.”10 Many a law professor could spend numerous classes shooting down Gingrich’s ideas or his interpretation of various Supreme Court decisions. Still, this political rhetoric hits a chord with people for a reason.11 The traditional response defending federal judicial review, represented by Senator Scott Brown’s reply to Gingrich, in essence is the

(17th ed. 2010) (discussing various opinions of some of the framers on judicial review). 8 For a famous debate over the legitimacy of judicial review, compare LEARNED HAND, THE

BILL OF RIGHTS 1, 3‐11, 27‐30 (Atheneum 1977) (1958) (arguing that there is nothing in the

language of the Constitution giving the Supreme Court the power of judicial review), with

Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 1‐10

(1959) (arguing that the power of judicial review is grounded in the language of the

Constitution). For an interesting and rather harsh criticism of Marbury and judicial review, see

JAMES MCGREGOR BURNS, PACKING THE COURT: THE RISE OF JUDICIAL POWER AND THE COMING

CRISIS OF THE SUPREME COURT 1‐5, 259 (2009) (arguing that Chief Justice John Marshall erred in

Marbury when holding that the Supreme Court is the ultimate interpreter of the Constitution

because that power lies with the American people themselves). 9 304 U.S. 144, 152 n.4 (1938). 10 Mr. Gingrich’s views were not the off‐the‐cuff musings of a presidential candidate. He

has issued a position paper supporting his views. See Bringing the Courts Back Under the

Constitution: NEWT 2012 Position Paper Supporting Item No. 9 of the 21st Century Contract with

America, NEWT.ORG (Oct. 7, 2011), http://www.newt.org/sites/newt.org/files/Courts.pdf. 11 See, e.g., Jeff Jacoby, The Supreme Court Can’t Be Absolute, BOS. GLOBE (Jan. 1, 2012),

www.bostonglobe.com/opinion/2012/01/01/supreme‐court‐can‐absolute/gp7sg853zm9jTatBj

LcJfL/story.html; Michael C. Dorf, Newt Gingrich Is Right That Judicial Supremacy Has Been

Challenged Before, but Wrong to Try to Turn Back the Clock, JUSTIA.COM (Dec. 28, 2011),

verdict.justia.com/2011/12/28/newt‐gingrich‐is‐right‐that‐judicial‐supremacy‐has‐been‐

challenged‐before‐but‐wrong‐to‐try‐to‐turn‐back‐the‐clock.



fact that the federal courts get the final say on legal interpretation may be irritating at times, but it is essential to protect the rule of law. This, however, may not be an adequate response.

There is room between these two perspectives. Perhaps it is time to check the swing of that pendulum, because it is always beneficial for any branch of government, even the least dangerous, to be subjected to challenge and criticism. The appropriate way to check any judicial intransigence or imperialism—be it from the right or the left—is not to disregard judicial holdings or subpoena judges. Instead, the solution is more nuanced and involves meaningful communication with the Supreme Court.

The three most effective messengers are Congress, the President, and the state courts. Congress’s role in this dialogue is the passage of legislation that tests, modifies, or corrects certain judicial holdings. The President can effectively communicate directly to the Supreme Court and rally the public against unwarranted or controversial decisions. State courts also have a role in this interaction by restrictively interpreting or distinguishing federal judicial precedents. Such actions serve as important avenues to check judicial supremacy or arrogance, and such communication allows the Court to reconsider—or better define and defend—its rulings. In the long run, such interaction is good for the Court and good for the political process. Meaningful communication protects the Court from the threat of being ignored and revitalizes the other governmental branches.

I. A Glance at the Past

Our present acceptance of federal judicial review is a relatively modern phenomenon. The early nineteenth century is littered with well‐known examples of scant respect for the Supreme Court or its powers. The most famous and vivid examples come from the State of Georgia.

His name was George Corn Tassel, and he was a Cherokee Indian living on Cherokee lands in what is now northern Georgia.12 The year was 1830; Andrew Jackson was the President, and John Marshall was the Chief Justice of the Supreme Court. At forty‐one years old, the Constitution had survived its infancy and was well into its young adulthood. Under the Constitution, the Indian Nations were separate sovereigns from the states, and only the federal government—not the states—was empowered to exercise any regulation of the “Indian Tribes.”13

12 See Robert S. Davis, State v. George Tassel: State’s Rights and the Cherokee Court Cases,

1827‐1830, 12 J. S. LEGAL HIST. 41, 41 (2004); R. Kent Newmyer, Chief Justice John Marshall’s Last

Campaign: Georgia, Jackson, and the Cherokee Cases, 24 J. SUP. CT. HIST. 76, 81, 83 (1999); Robert B.

McKay, Georgia Versus the United States Supreme Court, 4 J. PUB. L. 285, 293 (1955). 13 See U.S. CONST. art. I, § 8, cl. 3; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62 (1996) (“If



The Cherokees boasted of being the most “civilized” of the Native American tribes. Far from nomadic savages, the Cherokees farmed their rich lands in northern Georgia, converted to Christianity, and developed their own written language.14 Having the luxury of historic hindsight, some might view these actions as sad accommodations to appease an occupying power. No matter how civilized, the Cherokees remained just Indians to the Georgians who lusted for the rich Cherokee land and wanted the successful and pesky tribe gone.

Corn Tassel might not have been as genteel or civilized as some of his fellow tribesmen in that he was accused of murder.15 There seems little doubt that this murder, if it occurred, took place within the Cherokee land holdings. Georgia, refusing to recognize Cherokee ownership of the land or the sovereignty of the tribe, seized Corn Tassel and promptly tried and convicted him of murder in the state courts.16 Not surprisingly, Corn Tassel was sentenced to death.17 Corn Tassel argued that the Georgia state courts had no jurisdiction over actions that took place on the Cherokee lands and appealed this conviction and death sentence to the United States Supreme Court.18 The Supreme Court accepted the appeal and issued an order staying his impending execution.19 Upon receiving notice of the appeal and the stay, Georgia intentionally disregarded the order and hung Corn Tassel on the appointed day.20 Without a live body, there was no live issue and the Supreme Court chose to dodge a fight with Georgia and dismissed the case.21 No one was prosecuted or disciplined for Corn Tassel’s illegal hanging or the intentional disregard of the Supreme Court’s order of stay.

Two years later, the Cherokee Nation hired the services of one of the nation’s best lawyers, former Attorney General William Wirt, and appealed another case to the Supreme Court. At issue was a Georgia law that made it a crime for white people to work on the Cherokee lands without a state

anything, the Indian Commerce Clause accomplishes a greater transfer of power from the

States to the Federal Government than does the Interstate Commerce Clause. . . . [T]he States .

. . have been divested of virtually all authority over Indian commerce and Indian Tribes.”). 14 See McKay, supra note 12, at 293. 15 Id. at 293‐94. 16 See id. 17 Id. 18 See Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831); McKay, supra note 12, at 294. 19 See Cherokee Nation, 30 U.S. at 12 (explaining that the execution order was stayed

pending this appeal); Davis, supra note 12, at 56 (stating that the Supreme Court agreed to

hear the appeal). 20 See Cherokee Nation, 30 U.S. at 12 (explaining that Tassel was hung in defiance of the

Supreme Court); McKay, supra note 12, at 294. 21 See Cherokee Nation, 30 U.S. at 31 (stating that the Court had no jurisdiction to hear the

case).



permit.22 The law was directed against white missionaries who allegedly were giving spiritual guidance and counsel to the Cherokees while the Cherokees were resisting Georgia’s attempts to seize more and more Cherokee land.23 Georgia wanted to banish these missionary troublemakers. One missionary, Samuel Worcester, who had helped publish a Cherokee newspaper, was convicted by the State and sentenced to four years of hard labor.24

Remember, the Constitution rather explicitly prohibits states from regulating the sovereign Indian nations;25 therefore, it was rather clear that Georgia could not prohibit missionaries from entering or working on Cherokee lands. This issue eventually landed on appeal in John Marshall’s lap. Marshall issued a rather emphatic and unanimous decision that commanded Georgia to release Worcester and further held that Georgia must recognize the sovereignty of the Cherokee Nation, because the State had no control or power over any of the Cherokee lands.26 The Worcester v. Georgia decision infuriated Georgia; furthermore, President Andrew Jackson, that old Indian fighter, was not too pleased.27 Upon receiving word of the decision, popular folk legend has it that Jackson announced: “[Chief Justice] John Marshall has made his decision; now let him enforce it.”28

Whether or not Old Hickory had the presence of mind to coin this phrase is beside the point. As one historian has noted: “The ‘now let him enforce it’ remark is like the more colorful images from holy scripture: historically questionable but philosophically true.”29 Jackson certainly did not lift a finger to enforce the Supreme Court’s order, and thus, Jackson pinpointed a constitutional dilemma. Under our separation of powers, the federal judiciary cannot order the Army or the National Guard to enforce

22 Matthew L. Sundquist, Worcester v. Georgia: A Breakdown in the Separation of Powers, 35

AM. INDIAN L. REV. 239, 240 (2010). 23 See Gerard N. Magliocca, The Cherokee Removal and the Fourteenth Amendment, 53 DUKE

L.J. 875, 881 (2003); Sundquist, supra note 22, at 240, 242 (stating that Worcester was a

missionary and that Georgia wanted to acquire Cherokee land, as other states were doing). 24 For excellent and more detailed explanations of Worcester and the other Cherokee Cases,

see Sundquist, supra note 22, at 240; Joseph C. Burke, The Cherokee Cases: A Study in Law,

Politics and Morality, 21 STAN. L. REV. 500, 520 (1969). 25 U.S. CONST. art. I, § 8, cl. 3. 26 Worcester v. Georgia, 31 U.S. 515, 531 (1832). Marshall had avoided the issue the year

before when denying injunctive relief in Cherokee Nation v. Georgia, 30 U.S. 1, 20 (1831). 27 See Richard P. Longaker, Andrew Jackson and the Judiciary, 71 POL. SCI. Q. 341, 349‐50

(1956) (examining Andrew Jackson’s attitude toward the judiciary). 28 Id. at 341. 29 JON MEACHAM, AMERICAN LION: ANDREW JACKSON IN THE WHITE HOUSE 204 (2008).



its orders or threaten Georgia with loss of federal funds.30 The judiciary does not have the power of the sword or the purse. In the Worcester case, Jackson treated the Supreme Court’s order with disdain as he quietly encouraged Georgians to push the Cherokees off their lands.31 And, sure enough, that happened. The Cherokees were forced to leave Georgia for Oklahoma.32 For the second time in two years, the Supreme Court issued an emphatic order and nobody listened.

Although the Supreme Court’s stature rose after the Jackson Administration, later presidents rattled their sabers to remind the Court that it remained the least dangerous branch. Abraham Lincoln famously suggested that the controversial Dred Scott decision was binding only on the parties involved in the litigation and did not set a national policy.33 Recognizing the profound and divisive impact of the Dred Scott decision upon the nation, Lincoln addressed it directly in his first inaugural address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.34

Lincoln suggested negating the significance of any Supreme Court constitutional interpretation by restricting the holding to the parties involved in that particular case, thereby eliminating any precedential value to the judicial decision.35

30 Id. 31 See id. at 204‐05. 32 Arthur Manuel & Nicole Schabus, Indigenous Peoples at the Margin of the Global Economy:

A Violation of International Human Rights and International Trade Law, 8 CHAP. L. REV. 229, 232

(2005). 33 Prior to Lincoln’s First Inaugural, various northern state courts indicated significant

resistance to enforcing the Fugitive Slave Act. See, e.g., Commonwealth v. Aves, 35 Mass. 193,

224 (1836); Arnold v. Booth, 14 Wis. 195, 205 (1861). See also Julius Yanuck, The Garner Fugitive

Slave Case, 40 MISS. VALLEY HIST. REV. 47, 49‐50 (1953). 34 Abraham Lincoln, First Inaugural Address, in 5 A COMPILATION OF THE MESSAGES AND

PAPERS OF THE PRESIDENTS 3206, 3210‐11 (Richardson ed., 1897). 35 Id. at 3210. In this vein, one should also consider President Lincolnʹs direct defiance of

Chief Justice Taneyʹs judicial order to release John Merryman. The order came from Taney,

sitting as a federal circuit judge and not as a Supreme Court justice, ruling on a habeas corpus

petition of Merryman. Merryman was accused of treasonous activity including cutting

telegraph lines and destroying bridges in Maryland in an effort to help the Confederacy. See

Ex parte Merryman, 17 F. Cas. 144, 152 (C.C.D. Md. 1861). The President and the United States

Army refused to obey Taneyʹs order and Taney did not take any action to assure compliance.

For an excellent and readable description of the case and its background, see Bruce A.



Quoting from Lincoln’s First Inaugural, Franklin D. Roosevelt was prepared to directly defy a Supreme Court order should the Court decide against the government in the “gold clause” cases.36 In his draft address that he would have given had the Supreme Court ruled against the government’s ability to abrogate “gold clauses,” Roosevelt refused “[t]o stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion [for it] would so imperil the economic and political security of this nation.”37 Had the Supreme Court ruled differently and thrown the American economy into chaos during the difficult economic crisis of the 1930s, many would have supported outright defiance of a Supreme Court decision. They might well have been correct if only as a matter of practical necessity and national security. Of course, Roosevelt’s so‐called “court packing plan”38 was an explicit shot across the Supreme Court’s bow. Although not free of debate, there is evidence that Roosevelt’s famous plan, although soundly rejected by the Senate, effectively accelerated the Supreme Court’s reconsideration and rejection of its Lochner‐era holdings.39

Given the realities of modern America, the disregard of John Marshall’s Supreme Court seems rather antiquated and unlikely to reoccur. By the early 1900s, the Supreme Court was able to enforce its orders to reluctant state officials by use of the contempt power. When Sheriff Shipp of Chattanooga, Tennessee conspired to contravene Justice Harlan’s order to stay the execution of a poor, black man convicted of raping a young, white woman, the Supreme Court, sitting as a trial court, tried, convicted, and jailed the politically influential sheriff.40 Still, the Supreme Court’s contempt powers likely would be ineffective when enforcing broader based court orders typical in modern “public rights” litigation, such as

Ragsdale, Ex parte Merryman and Debates on Civil Liberties During the Civil War, FEDERAL

JUDICIAL CENTER (2007), http://www.fjc.gov/history/docs/merryman.pdf. 36 Girardeau A. Spann, Neutralizing Grutter, 7 U. PA. J. CONST. L. 633, 658 (2005) (citing

Perry v. United States, 294 U.S. 330 (1935)). 37 Franklin D. Roosevelt, Memorandum from F.D.R. to Joseph P. Kennedy (Feb. 19, 1935),

in 1 F.D.R.: HIS PERSONAL LETTERS, 1928‐1945, at 459‐60 (Elliott Roosevelt ed., 1950). See also

JAMES F. SIMON, FDR AND CHIEF JUSTICE HUGHES 252‐56 (2012). 38 JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT 3‐4 (2010). 39 The extent that certain members of the Court, particularly Justice Owen Roberts, were

actually affected by the public criticism of the Court’s anti‐New Deal rulings and the threat of

the “court packing” plan is, in all likelihood, a never ending historical debate. For the most

recent views on this issue, see SIMON, supra note 37, at 343‐45 and SHESOL, supra note 38, at

434‐37. 40 United States v. Shipp, 203 U.S. 563, 571‐72 (1906); United States v. Shipp, 214 U.S. 386,

423‐25 (1909); United States v. Shipp, 215 U.S. 580, 581‐82 (1909). See also MARK CURRIDEN &

LEROY PHILLIPS, JR., CONTEMPT OF COURT: THE TURN‐OF‐THE‐CENTURY LYNCHING THAT

LAUNCHED A HUNDRED YEARS OF FEDERALISM 284, 323, 334 (Faber & Faber ed., 1999).



desegregating a school district or altering state‐wide prison procedures.41

Although not outside the realm of possibility, it now seems mostly an academic exercise to imagine both a State and a President willfully ignoring a Supreme Court edict. It may be intriguing to ask, for example, what if President Eisenhower had not sent in the 101st Airborne to enforce the federal judicial order to desegregate the Little Rock public schools? But, the fact is that Eisenhower, no great fan of racially integrated public schools, did.42 In light of the Executive Branch’s consistent enforcement of unpopular judicial decisions during the massive Southern resistance of the late 1950s and early 1960s, it is now almost a cultural given that the Supreme Court is to be obeyed by co‐equal branches of power.43 This is true even if one’s grip on the Presidency is at stake. During the Watergate scandal, President Nixon’s lawyer made rumblings that Nixon might not comply with a Supreme Court order to hand over the Watergate tapes to the grand jury. Nixon did, in fact, comply when the Supreme Court ordered the production of the tapes.44 One of the tapes contained the famous “smoking gun” that proved Nixon knew of the Watergate burglary and engaged in a cover‐up.45 Fourteen days after complying with the

41 See Executive Office for U.S. Attorneys and U.S. Marshals Service: Oversight Hearing Before

the Subcomm. on Courts, Civil Liberties & the Admin. of Justice of the H. Comm. on the Judiciary,

100th Cong. 41‐42 (1987) (statement of Stanley E. Morris, Director, U.S. Marshals Service).

Even the Supreme Court’s contempt power requires a modicum of cooperation of the

Executive Department. See, e.g., id. For example, the U.S. Marshals Service, controlled

ultimately by the Executive, would arrange for the arrest and transport of the party accused of

contempt. See, e.g., id. 42 See TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954‐63, at 224

(1988); DWIGHT D. EISENHOWER, THE EISENHOWER DIARIES (Robert H. Ferrell ed., 1981);

RICHARD KLUGER, SIMPLE JUSTICE 753‐54 (1975). 43 See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958) (illustrating the unanimous decision

affirming the federal district court’s desegregation order in Little Rock). Cooper is often cited

as the most far‐reaching pronouncement by the Court of its paramount position to interpret

the Constitution. The court stated, in a tone that made it seem like the proposition was a given

since 1803, the “federal judiciary is supreme in the exposition of the law of the Constitution,”

and this principle is “a permanent and indispensable feature of our constitutional system.” Id.

Professor Gerald Gunther convincingly argued that this dicta in Cooper expanded the Marbury

holding by “confus[ing] Marshall’s assertion of judicial authority to interpret the Constitution

with judicial exclusiveness.” Gerald Gunther, The Subtle Vices of the “Passive Virtues”—A

Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 25 n.155 (1964). 44 United States v. Nixon, 418 U.S. 683, 683, 705 (1974) (quoting Marbury v. Madison, 5 U.S.

137, 177 (1803) (reviewing a claim of “executive privilege” and reaffirming that “it is the

province and the duty of this Court ‘to say what the law is’ with respect to the claim of

privilege presented in this case”)). 45 Phillip Allen Lacovara, United States v. Nixon: The Prelude, 83 MINN. L. REV. 1061, 1064

(1999); see generally The Smoking Gun Tape, WATERGATE.INFO (Jun. 23, 1972),

http://Watergate.info/1972/06/23/the‐smoking‐gun‐tape.html (displaying a transcript of the



Supreme Court order, Nixon resigned the Presidency.46 The overlay of late twentieth century history has solidified the Supreme Court as the “supreme” interpreter of the Constitution. Add to this the fact that, in most instances, our national economy and the other co‐equal branches of government rely too heavily upon the judiciary to even imagine disobeying a Supreme Court mandate. All this has led to a situation where the Supreme Court, like Rumpole’s wife, is “she who must be obeyed.”47

II. A Suggestion for the Future: Communication with and Pressure upon the Supreme Court

This unhesitating obedience is, for the most part, all for the good. The counter‐majoritarian aspects of judicial review are invaluable when upholding fundamental civil rights and the rights of insular and discrete minorities. Would any of us want Eisenhower to abandon young black students to a Little Rock mob? Would we ever want to relive the hanging of a prisoner in outright defiance of a Supreme Court order? The answer is, rather obviously: of course not. Still, there is a need and a value to communicating displeasure to the Court and, indeed, a need and a value to exerting some pressure upon the Court. While obedience is important, it is equally important that it is not unquestioning obedience. No branch of government, even the least dangerous, should have a questionable assertion of power go unanswered. In the late twentieth and early twenty‐first centuries, communication between the Court, the public, and Congress has at times been effective. For the most part, however, there is much room for improvement. The following briefly explores the dialogue that has or should take place between the Court, the public, and Congress in three areas: constitutional interpretation, the development of federal constitutional common law, and statutory interpretation. Pressure exerted by the democratic forces of government upon the judiciary will, in the long term, be beneficial to both.

A. Constitutional Interpretation: A Dialogue Between the Court and Congress

The ability to influence Supreme Court decisions is most limited in cases involving actual interpretation of constitutional provisions. Such insulation is appropriate particularly in decisions regarding civil rights where the Court uses judicial review as a counter‐majoritarian protection

recording of a meeting between President Nixon and H.R. Haldeman in the Oval Office). 46 See Randall K. Miller, Congressional Inquests: Suffocating the Constitutional Prerogative of

Executive Privilege, 81 MINN. L. REV. 631, 638 (1997). 47 Rumpole Remembered, PBS.ORG, http://www.pbs.org/wgbh/mystery/rumpole.html (last

visited Oct. 22, 2012).



for the politically powerless or unpopular.48 Still, Congress and state courts can responsibly attempt to influence the Supreme Court by legislation and judicial decisions.

A good example of Congress initiating a dialogue with the Supreme Court can be found in federal statutes restricting the right to habeas corpus. In the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Congress mandated deportation of any alien convicted of certain felony charges, including most drug crimes.49 The legislation eliminated federal court jurisdiction over any appeal of an Immigration and Nationalization Service (INS) deportation order.50 Congress also eliminated any jurisdiction to hear a writ of habeas corpus brought by an alien challenging a deportation order.51 This set the stage for INS v. St. Cyr.52 St. Cyr, a citizen of Haiti, was legally admitted into the United States but later pled guilty to a state felony drug charge.53 Under the IIRIRA, the INS instituted deportation proceedings against St. Cyr. St. Cyr filed a habeas petition under the federal habeas statute54 challenging both the interpretation and constitutionality of the statute and requesting release.

The United States argued that the Supreme Court lacked jurisdiction to hear the habeas petition because Congress explicitly precluded judicial review in the IIRIRA and in a companion statute.55 The argument certainly

48 Not everyone would agree with this statement. Former Speaker Newt Gingrich, citing

Thomas Jefferson’s views, appears to believe that each branch is co‐equal in its interpretation

of all aspects of the Constitution. Under this analysis, if two branches of the federal

government interpreted the Constitution differently than the third branch, the majority wins.

Thus, if Congress and the Executive disagreed with Brown v. Board of Education, the political

branches would not be obligated to follow or enforce the Supreme Court’s mandate. Such an

approach would eliminate the protection that judicial review provides for fundamental rights

and discrete and insular minorities. This is not to say that Congress and the Executive do not

have a role—or an obligation—to interpret the Constitution. In some areas, the interpretation

by Congress or the Executive may be definitive. This is the basis of the “political question”

doctrine. In other areas, however, the Court may get the final say. 49 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104‐

208, § 348 (1996). 50 Calcano‐Martinez v. INS, 533 U.S. 348, 349‐50 (2001). 51 Indeed, Section 401(e) of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) featured a provision entitled “Elimination of Custody Review by Habeas Corpus,”

and the IIRIRA provided: “Notwithstanding any other provision of law, no court shall have

jurisdiction to review any final order of removal against an alien who is removable by reason

of having committed [various offenses].” INS v. St. Cyr, 533 U.S. 289, 311, 328 (2001). 52 Id. at 289. 53 Id. at 408. 54 28 U.S.C. § 2241 (2008). 55 See St. Cyr, 533 U.S. at 308.



had some force—one provision of the law was titled “Elimination of Custody Review by Habeas Corpus.”56 By a closely divided 5‐4 vote, the Supreme Court held that the IIRIRA must be interpreted not to preclude jurisdiction. The majority opinion, written by Justice Stevens, stated that there is a strong presumption in favor of judicial review of administrative action and that only a clear statement from Congress to repeal habeas jurisdiction would overcome that presumption.57 Interpreting the statute to preclude jurisdiction to hear the habeas petition absent a clear statement from Congress would raise “serious constitutional problems.”58 The majority explained: “a serious Suspension Clause issue would be presented if we were to accept the INS’s submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for the exercise.”59 Despite wording that almost anyone could understand, the majority found that there was no clear statement. Straining mightily, Justice Stevens reasoned that the statute’s preclusion of “judicial review” did not include precluding jurisdiction over habeas corpus petitions. “In the immigration context,” Stevens wrote, “‘judicial review’ and ‘habeas corpus’ have historically distinct meanings.”60

Not surprisingly, Justice Scalia filed a withering dissent claiming that the majority found “ambiguity in the utterly clear language” of the statute and fabricated a “superclear statement, ‘magic words’ requirement.”61 Justice Scalia (now writing for only two other justices, as Justice O’Connor did not join this portion of his opinion) opined that the Suspension Clause does not “guarantee any [particular] writ of habeas corpus” but only ensures that whatever habeas rights exist at a particular time may not be suspended.62

Scalia’s criticism of the majority’s inability to find a “clear statement” is well founded. That critique, however, misses the larger point. When St. Cyr was argued, the issue of whether there existed an affirmative constitutional right to habeas corpus was unanswered. Since the First Judiciary Act of 1789, a statutory habeas remedy existed and was only suspended by Abraham Lincoln. Whether Article I’s “Suspension Clause” implied such a right was unclear and, thus, as the majority noted, constituted a “serious

56 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104‐132, 110 Stat.

1214, 1268. 57 St. Cyr, 533 U.S. at 298. 58 Id. at 299‐300. 59 Id. at 305. 60 Id. at 311. 61 Id. at 326‐27 (Scalia, J., dissenting). 62 Id. at 337.



Suspension Clause issue.”63 Given the importance of the issue and the novelty of suspending the writ, the majority was wise to rule as it did. By ducking the constitutional issue, the Supreme Court effectively put the ball back in Congress’s court and allowed the democratic branch of government an opportunity to reconsider this important step.

As time would tell, Congress did mean to eliminate jurisdiction over writs of habeas corpus, albeit in a different context. Picking up on the Court’s request for a super clear statement, Congress provided that in the Military Commissions Act.64 That Act explicitly eliminated any jurisdiction over a habeas corpus petition filed by any alien deemed an “enemy combatant.”65 Because every Justice agreed that the statute unequivocally and clearly eliminated habeas corpus for “enemy combatants,” the Court was forced to confront the issue in Boumediene v. Bush.66 The majority of the Court found that the Suspension Clause, Article I, Section 9, Clause 2, did provide a constitutional right to habeas corpus relief and that the Military Commissions Act unconstitutionally suspended that right.67

The Supreme Court, of course, could have reached its Boumediene ruling on the right to habeas relief seven years earlier in St. Cyr. The delay was warranted, however, because it allowed a dialogue between Congress and the Court. The Court emphasized in St. Cyr what an important decision Congress was making and Congress, in turn, made the difficult decision and relayed it to the Court in very certain terms.68 This, after all, is

63 See St. Cyr, 533 U.S. at 304‐05. There exists historical ammunition for each side in this

debate. Prior to the drafting of the Constitution, every State provided for the right to petition

for habeas corpus. Erwin Chemerinsky, Thinking About Habeas Corpus, 37 CASE W. RES. L. REV.

748, 751‐52 (1987). That right, long established in English common law, was generally

considered the fundamental building block for the Anglo‐American concept of the rule of law.

After all, why would the drafters include a prohibition against suspending the writ if there

wasn’t an implied right to habeas corpus? On the other hand, Charles Pinckney proposed

including an explicit right to habeas corpus during the Constitutional Convention and it was

voted down. Id. This failure to include an explicit right to habeas did not go unnoticed. Four

of the state ratifying conventions objected to the Constitution’s lack of an affirmative

guarantee of a right to habeas corpus relief. Id. 64 Cf. Military Commission Act of 2006, Pub. L. No. 109‐366, § 7(e)(1), 120 Stat. 2600, 2636

(2006); St. Cyr, 533 U.S. at 298‐99 (showing the Court’s issues with Congressional language

and the Act which used more explicit language). 65 Military Commission Act of 2006, Pub. L. No. 109‐366, § 7(e)(1), 120 Stat. 2600, 2636

(2006). 66 Boumediene v. Bush, 553 U.S. 723, 776 (2008). 67 Id. at 732‐33. 68 See id. at 737‐38 (explaining that when the Court requests a clear, unequivocal statement

from Congress, Congress can respond as it did here with an amended statute that makes their

intent clear); St. Cyr, 533 U.S. at 298‐99 (explaining that the Court required a clear

unambiguous statement from Congress).



what democracy is all about. The Court, then, was completely justified in making, indeed was obligated to make, the difficult constitutional determination as to whether there existed a constitutional right to habeas relief that could only be suspended in times of rebellion or invasion. In making this determination, the Court—whether one agrees with the majority’s reasoning or not—was most justified in using the counter‐majoritarian power of judicial review. The Court was dealing with a most fundamental right, the writ of habeas corpus, as it applied to a classically “discrete and insular minority,” i.e., aliens.

The advantage of this extended dialogue between the two governmental branches was that it initially avoided unnecessary constitutional interpretation and eventually allowed the Court to hone its constitutional analysis. This is true of both the majority and the dissent. Justice Scalia, for example, did not repeat the questionable Suspension Clause analysis that he tried out in his St. Cyr dissent. This type of back‐and‐forth between Congress and the Court benefits both branches. It forces Congress to make difficult political choices while enforcing self‐restraint on the judicial branch. Once Congress makes its political choice and forces the Court’s hand, the public better understands that the “irreplaceable value of the power [of judicial review] . . . lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action.”69

B. Questioning and Refining of Supreme Court Decisions by State Courts

State courts can play an important and unique role in communicating with the Supreme Court. When the Supreme Court interprets the Constitution in a new or expansive fashion, it almost necessarily does so without fully anticipating the effect such a ruling will have in the unique settings of various states or regional areas of the nation. A rather recent example is the Supreme Court’s foray into corporate free speech as delineated in its controversial Citizens United v. F.E.C. decision.70 In Citizens United, a fractured Court extended First Amendment protections to corporations and struck down federal statutes and regulations that prohibited corporations from financially supporting a candidate for federal office.71 The majority found that the law’s provision that gave the corporation the option of spending money for political support through a separate political action committee constituted an unconstitutional burden

69 United States v. Richardson, 418 U.S. 166, 188‐92 (1974) (Powell, J., concurring). 70 Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). 71 See id. at 886, 912‐13.



to the corporation’s right of free speech.72 No matter whether one agrees with the majority or the strenuous dissenting opinions,73 one must acknowledge that Citizens United plowed new constitutional ground and will have a significant impact on national electoral politics.

The “Big Sky State” of Montana is quite a distance, both geographically and culturally, from the Beltway of Washington, D.C. In 1912, the citizens of the young state of Montana, disgusted with the political corruption caused by large mining corporations, enacted, by initiative petition, a statutory ban on all corporate political contributions. Since that early time, Montana has prohibited any corporation from making “a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”74 The law did allow shareholders and employees to voluntarily contribute to a “separate” fund (similar to a political action committee) for political contributions. In the wake of the Citizens United decision, three corporations argued, in a state lawsuit, that the Montana law was an unconstitutional restriction on free speech.75

The majority of the Montana Supreme Court upheld the state law and distinguished Citizens United, in part, due to the unique history of Montana political corruption caused by “foreign trusts or corporations.”76 The Montana statute was enacted in response to rather blatant, albeit colorful, political abuses. At the turn of the nineteenth century, the mining baron F. Augustus Heinze and the Amalgamated Copper Company,77 then controlled by Standard Oil, fought over the mineral rights of the “richest hill on earth” in Butte, Montana.78 Heinze allegedly bought two Butte judges who ruled consistently in his favor.79 Amalgamated responded by

72 See id. at 897. 73 See generally id. at 929‐79 (Stevens, J., concurring in part and dissenting in part); id. at

980‐82 (Thomas, J., concurring in part and dissenting in part). 74 MONT. CODE ANN. §13‐35‐227(1) (2011). 75 W. Tradition P’ship, Inc. v. Att’y Gen., 2011 MT 328, ¶ 2, 363 Mont. 220, 271 P.3d 1, 3,

rev’d sub nom. Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012). 76 Id. ¶ 22, 363 Mont. at 234, 271 P.3d at 8. 77 Amalgamated Copper Company was renamed the Anaconda Copper Company in 1915

as a result of dissolution and acquisition. See JOHN MOODY, MOODY’S ANALYSES OF

INVESTMENTS 1196 (1916); THE MANUAL OF STATISTICS COMPANY, THE MANUAL OF STATISTICS

63 (1919). 78 Larry Howell, Once Upon a Time in the West: Citizens United, Caperton, and the War of the

Copper Kings, 73 MONT. L. REV. 25, 31 (2012). 79 See, e.g., W. William Leaphart, Comment, First Right of Recusal, 72 MONT. L. REV. 287, 287

(2011) (discussing need of Montana Supreme Court to supervise decisions of “bought and

paid for” Judge Clancy from Butte); see also Larry Howell, “Purely the Creature of the Inventive

Genius of the Court”: State Ex Rel. Whiteside and the Creation and Evolution of the Montana



offering $250,000 to one of the Butte judges if he signed an affidavit admitting to the bribe.80 When the bribe‐upon‐bribe ploy did not work, Amalgamated closed down its mining operations and threw four‐fifths of the Montana labor force out of work.81 This heavy‐handed measure induced the legislature to pass a statute in special session that protected Amalgamated from litigating in front of the Butte judges.82 Around the same time, another of the “Copper Kings,” William A. Clark, supposedly bribed enough Montana legislators to be named as a U.S. senator. The U.S. Senate investigated, expressed shock at the degree of political payola in Montana, and unseated Clark.83 The Clark affair and Montana political corruption became sufficiently famous for Mark Twain to opine in 1907 that “[b]y his example [Clark] has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.”84 Meanwhile, Amalgamated continued to amass power and, by 1910, controlled most of the economy and almost all the newspapers in Montana. Montanans felt “locked in the grip of a corporation controlled from Wall Street and insensitive to their concerns.”85 After relating this history, the Montana Supreme Court explained that “this naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law.”86 One of those reforms was the challenged ban on corporate funding of political candidates.

Based on this history of corporate political abuse, the Montana Supreme Court found that the state “clearly had a compelling interest to enact the challenged statute” and defined that interest as “preserving the integrity of its electoral process [and] encouraging the full participation of the Montana electorate.”87 The court explained that “unlimited corporate money would irrevocably change the dynamic of local Montana political office races, which have historically been characterized by the low‐dollar,

Supreme Court’s Unique and Controversial Writ of Supervisory Control, 69 MONT. L. REV. 1, 32

(2008). 80 W. Tradition P’ship, Inc., 2011 MT ¶ 23, 363 Mont. at 230‐31, 271 P.3d at 8. 81 Id. ¶ 24, 363 Mont. at 231, 271 P.3d at 8. 82 K. ROSS TOOLE, MONTANA: AN UNCOMMON LAND 208‐09 (1959); see also Howell, supra

note 78, at 32‐35. 83 See Michael P. Malone, Midas of the West: The Incredible Career of William Andrews Clark, 33

MONTANA: THE MAGAZINE OF WESTERN HISTORY 1 (1983). 84 Mark Twain, The Plutocracy, in MARK TWAIN IN ERUPTION 61, 72 (Bernard DeVoto ed., 3d

ed. 1940). 85 MICHAEL P. MALONE & RICHARD B. ROEDER, MONTANA: A HISTORY OF TWO CENTURIES

176 (1976). 86 W. Tradition P’ship, Inc., 2011 MT ¶ 28, 363 Mont. at 232, 271 P.3d at 9. 87 Id. ¶ 38, 363 Mont. at 236, 271 P.3d at 11.



broad‐based campaigns run by Montana candidates.”88 Perhaps recognizing that this “compelling interest” might not be a sufficient distinction with the interests cited in Citizens United, the Montana Supreme Court buttressed its analysis by identifying a second “compelling interest” that did not exist in the federal lawsuit: “protecting and preserving [Montana’s] system of elected judges.”89 Expressing a concern that obviously hit close to home, the court stated “[i]t is clear that an entity . . . willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices.”90 The judges went so far as to liken such corporate money as resurrecting the “bought” judges of Butte.91

In further distinguishing Citizens United, the Montana Supreme Court found the state statute achieved these compelling interests by “narrowly tailored” means.92 Although the Citizens United opinion found corporate PACs “burdensome alternatives” that “are expensive to administer and subject to extensive regulations,”93 the Montana Supreme Court found the “political committee” to be “an easily implemented and effective alternative to direct corporate spending for engaging in political speech.”94 Unlike the “length, complexity and ambiguity of the [f]ederal restrictions,” the majority argued, “under Montana law a political committee can be formed and maintained by filing simple and straight‐forward forms . . . .”95 The Montana corporate spending ban was upheld as being one of those rare birds: a statute that impinged on a most fundamental right, freedom of political speech, but passed the “strict scrutiny” test by being justified by a “compelling interest” met by the “least restrictive means.”96

88 Id. 89 Id. ¶ 39, 363 Mont. at 236‐37, 271 P.3d at 12. The court explained: “In this State, the

people elect the Justices of the Supreme Court, the Judges of the District Courts, and most

lower court judges as well.” Id. As can be seen from the tenor of the opinion, corporate

electoral spending has a much more direct impact on the Justices of the Montana Supreme

Court than on the Justices of the United States Supreme Court. See id. 90 W. Tradition P’ship, Inc., 2011 MT ¶ 44, 363 Mont. at 238, 271 P.3d at 13. 91 Id. ¶¶ 22, 44, 363 Mont. at 230, 238, 271 P.3d at 8, 13. The Montana Supreme Court noted

that the 2008 contested election for Chief Justice of the Montana Supreme Court involved a

modest $60,000 in media advertising. Id. ¶ 44, 363 Mont. at 238, 271 P.3d at 13. 92 Id. ¶ 47, 363 Mont. at 393, 271 P.3d at 13.

93 Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 897 (2010). 94 Id. ¶ 21 (majority opinion), 363 Mont. at 230, 271 P.3d at 7. 95 Id. ¶ 21, 363 Mont. at 230, 271 P.3d at 7. 96 See id. ¶ 78, 363 Mont. at 252‐53, 271 P.3d at 21 (Nelson, J., dissenting); Gerald Gunther,

In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86

HARV. L. REV. 1, 8 (1972) (describing judicial “scrutiny [of legislation] that was ‘strict’ in

theory and fatal in fact”).



While the majority’s opinion in Western Traditions makes interesting reading, the dissent proved to have the better legal argument. As the dissent noted, Montana’s interests in protecting the integrity of the political process is hardly unique and was addressed by the Supreme Court’s “broad, sweeping, and unqualified language” in Citizens United.97 Likewise, protecting judicial elections is not a unique interest for “every state with an elected judiciary has these same interests.”98 As Justice Nelson admitted in his dissent, “I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better‐reasoned dissent of Justice Stevens.”99 Justice Nelson recognized, however, that Justice Stevens’s Citizens United dissent did not carry the day and reflected many of the points made by the Western Traditions majority. Although he found himself in a “distasteful position,” Justice Nelson observed the obvious: “[O]ur obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or worse, binding on this Court . . . .”100 Montana, Justice Nelson observed, “is in the same First Amendment swimming pool as every other state, and the Supreme Court has dictated that its waters are expansive and deep when it comes to corporate political speech.”101

Justice Nelson’s Western Traditions dissent found the majority’s reliance upon the unique history of Montana to be disingenuous. In his view, the majority opinion only made sense if “this First Amendment protection [for corporate speech] magically evaporates at Montana’s borders because of a law adopted 100 years ago to address a very fact‐specific situation.”102 If every state, like Montana, could restrict corporate political speech “based on population density, the existence of ‘mineral wealth,’ a history of ‘low‐dollar, broad‐based campaigns,’ and past experience with ‘heavy‐handed influence’ asserted by corporations,” the Supreme Court’s Citizens United decision “will be ‘state‐lawed’ into oblivion.”103 Justice Nelson, therefore, disagreed with the majority’s “decision to parse Citizens United in a fashion so as to ‘send a message’ to, or be the next ‘test case’ before, the Supreme Court.”104

When appealed to the United States Supreme Court, the five member

97 W. Tradition P’ship, Inc., 2011 MT ¶72, 363 Mont. at 249, 271 P.3d at 19. 98 Id. ¶ 64, 363 Mont. at 245, 271 P.3d at 17. 99 Id. ¶ 69, 363 Mont. at 247‐48, 271 P.3d at 18. 100 Id. ¶¶ 69‐70, 363 Mont. at 247‐48, 271 P.3d at 18‐19. 101 Id. ¶ 134, 363 Mont. at 276, 271 P.3d at 36. 102 Id. ¶ 72, 363 Mont. at 249, 271 P.3d at 19. 103 W. Tradition P’ship, Inc., 2011 MT ¶ 72, 363 Mont. at 249, 271 P.3d at 19 (Nelson, J.,

dissenting). 104 Id. ¶ 134, 363 Mont. at 276, 271 P.3d at 36.



Citizens United majority summarily reversed the Montana Supreme Court decision with a curt per curiam decision.105 The per curiam announced that “there can be no serious doubt” that the Citizens United holding applied to the Montana law. As predicted by the dissenting state justices, the majority held that “Montana’s arguments . . . were already rejected in Citizens United, or fail to meaningfully distinguish that case.”106

Was it, however, unwise of the Montana Supreme Court to “parse” the Citizens United decision and “send a message” to the United States Supreme Court? The answer is: definitely not. The Montana Supreme Court did not attempt to defy the United States Supreme Court, although there were undoubtedly plenty of Montana politicians who might posture and recommend ignoring the Supreme Court.107 Instead, the state court majority emphasized that certain rural states, particularly those that elect their judges, would be greatly affected by too broad an application of the Citizens United holding.108 The rather unique history of Montana and the effect upon judicial elections were matters not fully considered in Citizens United. There is nothing wrong—indeed there are definite benefits—in allowing a fractured Supreme Court to assess the impact of a novel constitutional interpretation in the context of a rural state with a small, dispersed population and a long history of corporate political corruption. Unlike a trial court, the Supreme Court does not receive many motions for reconsideration or motions for a new trial. There is a benefit to any judge, never mind a Justice making a ruling that will have nationwide impact, to rethink an important decision in light of additional facts or the application of the rule in a significantly different context. Unfortunately, by summarily reversing the Montana Supreme Court and not obtaining the benefit of full briefing or argument, the United States Supreme Court majority missed the opportunity to consider the impact of its controversial Citizens United decision in the somewhat unique context of a rural state beset with a history of electoral corruption caused by disproportionate financial contributions.109 Fully considering decisions from state supreme courts, like

105 Am. Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490, 2491 (2012). 106 Id. at 1; see also Ira P. Robbins, Hiding Behind the Cloak of Invisibility: The Supreme Court

and Per Curiam Opinions, 86 TUL. L. REV. 1197, 1207, 1217‐18 (2012) (criticizing the increased

use of per curiam opinions by the Roberts Court); Laura Krugman Ray, The Road to Bush v.

Gore: The History of the Supreme Courtʹs Use of the Per Curiam Opinion, 79 NEB. L. REV. 517, 519,

549 (2000) (criticizing the history and use of per curiam opinions). 107 W. Traditions P’ship, Inc., 2011 MT ¶ 71, 363 Mont. at 248, 271 P.3d at 19 (Nelson, J.,

dissenting) (citing Mike Dennison, Bills Test State’s Power to Nullify Fed Laws, HELENA INDEP.

RECORD, Feb. 13, 2011 (describing Montana politicians’ call “for Montana to thumb its nose at

the federal government”)). 108 See id. ¶¶ 30, 44, 363 Mont. at 233, 238, 271 P.3d at 10, 13. 109 Justice Breyer (joined by three others) dissented from the summary reversal and



Western Traditions, would allow the Supreme Court the opportunity for reconsideration and refinement of novel constitutional decisions. Although there are undoubtedly times when per curiam decisions are appropriate, this was not one of them. Sounding like an irritated parent confronting a child’s protests, the Supreme Court lost the chance to beneficially interact with a state supreme court, which was attempting to apply a new First Amendment holding to a very distinctive local setting.110

There is, of course, a limit on state court efforts to distinguish clearly applicable Supreme Court precedent. Once the federal judicial precedent is clearly established and plainly applicable to the local context, the state court judge has the duty—no matter how “distasteful”—to apply and effectuate that Supreme Court ruling. After all, that is what the Supremacy

recognized the distinctive “history and political landscape in Montana.” Am. Tradition P’ship,

132 S. Ct. at 2491 (Breyer, J., dissenting) (“[E]ven if I were to accept Citizens United, this Courtʹs

legal conclusion should not bar the Montana Supreme Courtʹs finding . . . that independent

expenditures by corporations did in fact lead to corruption or the appearance of corruption in

Montana.”). 110 State legislatures also have a role to play in communicating with the Supreme Court,

although it is somewhat less direct than decisions appealed from the state’s highest appellate

court. State legislatures pass bills that attempt to define the contours of Supreme Court

constitutional interpretation or to sidestep some controversial constitutional ruling. For

example, numerous state legislatures have passed bills that attempt to place limitations on a

woman’s right to an abortion recognized in Roe v. Wade, 410 U.S. 113 (1973). These state laws,

when appealed to the Supreme Court, have provided the Court the opportunity to revisit the

Roe v. Wade decision and to, depending on one’s point of view, limit or further define the

right. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (invalidating a

state law requirement that wives inform husbands of abortion); Webster v. Reprod. Health

Servs., 492 U.S. 490, 511, 519‐20 (1989) (upholding state restrictions on abortions in state

facilities and requiring doctors to perform certain fetus viability tests prior to abortion);

Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 767‐68 (1986)

(invalidating state law that requires reporting the identities of patients who obtain an abortion

and the physicians who perform them); Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416,

438 (1983) (striking down state law requiring second‐ and third‐trimester abortions be

performed in hospital); Planned Parenthood Ass’n of Kan. City v. Ashcroft, 462 U.S. 476, 490‐

94 (1983) (upholding state law allowing parental consent or judicial alternative); Bellotti v.

Baird, 443 U.S. 622, 649 (1979) (upholding state law allowing parental consent or judicial

alternative); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 69‐71 (1976) (striking

down Missouri law that required husband’s written consent to obtain an abortion). Under the

Supremacy Clause, one assumes that responsible state legislatures should eventually resist the

temptation to pass laws challenging Supreme Court constitutional interpretation after the law

is clearly settled. See Casey, 505 U.S. at 844 (“Liberty finds no refuge in a jurisprudence of

doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to

terminate her pregnancy in its early stages, Roe[’s] . . . definition of liberty is still

questioned.”). State legislatures, however, being some of the most direct sources of our

democratic voice, do not have the same strictures to follow federal precedents as do the state

courts.



Clause is all about.111 Carefully parsing, distinguishing, and testing a recent Supreme Court decision is categorically different than the type of calculated, wide‐based resistance that was practiced by the highest courts of certain southern states during the late 1950s and early 1960s.112 The former constitutes responsible efforts to have the Supreme Court refine the scope of a novel ruling while the latter is a thinly disguised effort to ignore a court’s constitutional duties mandated by Article VI. The point is that there exists a legitimate window of opportunity for a state court to press the Supreme Court to reconsider the contours of a controversial decision. In the long run, this pressure from state courts is good for our federalism and good for the Supreme Court. One can hold this view without adopting Lincoln’s proposal to limit or eliminate the precedential value of controversial Supreme Court decisions. The tricky portion of this approach is determining when a Supreme Court ruling is firmly settled and must be routinely obeyed. On this matter, Herbert Wechsler, long ago, wisely stated:

When that chance has been exploited and has run its course, with reaffirmation rather than reversal of decision, has not the time arrived when its acceptance is demanded, without insisting on repeated litigation?

The answer here, it seems to me, must be affirmative, both as the necessary implication of our constitutional tradition and to avoid the greater evils that will otherwise ensue.113

Using the Montana Supreme Court’s decision in Western Traditions as an example, the majority’s efforts to distinguish the Supreme Court’s holding was justified because the Citizens United holding had not yet been reaffirmed, and the Supreme Court would have done well to reconsider its holding in a different context.

C. Presidential Criticism of Supreme Court Constitutional Interpretation

Other than the power to fill Supreme Court vacancies, the President

111 See U.S. CONST. art. VI, cl. 2. 112 See, e.g., NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 289‐93 (1964) (showing the

Alabama court system’s attempts to frustrate the NAACP from presenting their case, contrary

to the Supreme Court’s wishes); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 451‐54

(1958) (referring to the first holding in a series of decisions in which the Alabama Supreme

Court was resistant to the U.S. Supreme Court’s interpretation of constitutional civil rights);

Staub v. City of Baxley, 355 U.S. 313, 318‐20 (1958) (noting the strategy employed by the

southern court systems in an attempt to restrict the Supreme Court’s ability to determine

constitutional issues). 113 Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1008 (1965).



has few avenues to legitimately and effectively communicate with the Supreme Court. The President does not enact legislation in response to Supreme Court decisions nor write opinions that will be reviewed by the Supreme Court.114 Still, the President does have the “bully pulpit” of the Presidency.115 A recent celebrated use of that pulpit occurred in response to the controversial Citizens United case discussed above. In his 2010 State of the Union Address, President Obama rather famously criticized the decision in front of the majority of the Supreme Court justices seated in the House Chamber. Obama noted that “last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”116 Newspaper editorials denounced Obama’s comments as “rude and self‐serving.”117 Senator Orrin Hatch found the comment “disrespectful” and added that “[n]o president has done that, and he should not have used that speech for it either.”118

Although Chief Justice Roberts admitted that “[s]ome people . . . have an obligation to criticize what we do, given their office,” he opined that “[t]o the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”119 This harsh reaction to Obama’s

114 While the President is usually limited to attempting to rally public support against a

Supreme Court interpretation, there are exceptional situations where the President has used

more extreme measures. Franklin D. Roosevelt’s threat to defy the Supreme Court in the

“gold clause” cases and the announcement of his famous “court‐packing” plan are examples.

See JAMES MACGREGOR BURNS, PACKING THE COURT: THE RISE OF JUDICIAL POWER AND THE

COMING CRISIS OF THE SUPREME COURT 145‐46 (Laura Stickney ed., 2009). This sort of action by

the Executive Branch is the exception, rather than the rule, and has been limited to situations

of national economic crisis. Id. 115 See Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 316 (2005); Elena

Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2299‐300 (2001). 116 President Barack H. Obama, Address Before a Joint Session of Congress on the State of

the Union (Jan. 27, 2010), available at http://www.gpo.gov/fdsys/pkg/DCPD‐

201000055/pdf/DCPD‐201000055.pdf. 117 Editorial, By Skipping Obama Speech, Justices Bring Politics to Court, BOS. GLOBE, Jan. 27,

2011, at 18, available at 2011 WLNR 1639505. 118 Kara Rowland, Chief Justice Reignites Feud with Obama Counters State of Union Jab, WASH.

TIMES, Mar. 11, 2010, at A01, available at 2010 WLNR 5111426. Senator Hatch was wrong in

asserting that no president had ever used the State of the Union Address to criticize the

Supreme Court. Franklin D. Roosevelt, for instance, criticized the Court in his 1937 State of the

Union Address, not to mention other public speeches. SIMON, supra note 37, at 311‐12. Teddy

Roosevelt happily whacked away at the Supreme Court while he was President. See, e.g.,

BURNS, supra note 8, at 120 (noting an instance when President Roosevelt criticized the Court

in public after they struck down a congressional statute that increased liability of employers

for employees’ injuries). 119 Bill Mears, Chief Justice Chides State of the Union as ‘Political Pep Rally,’ CNN POLITICS

(Mar. 10, 2010), http://articles.cnn.com/2010‐03‐10/politics/obama.supremecourt



legitimate analysis displays the current veneration of the Supreme Court. It is unclear how the President’s criticism was “rude” or “disrespectful” to the Court. Given the temperature of today’s politics, the statement was rather restrained, and few have claimed that Obama’s analysis was incorrect.120 To Chief Justice Roberts and his brethren, like Justice Alito who has refused to attend more recent State of the Union addresses, my respectful suggestion is: toughen up. Any state court judge trying a high profile criminal case, or even setting bail for someone accused of an infamous crime, is subjected to at least this level of criticism on a frequent basis. There is nothing inappropriate about the President criticizing the highest members of the Judicial Branch to their faces. Any judge’s decision‐ making is improved if he or she understands the depth of public reaction to the ruling.121 This hardly means that the judge should pander to public pressure; but, the judge should understand the societal reaction to the decision if only to be better able to gauge the wisdom of the decision and explain to society the reasoning behind the decision.

President Obama incurred similar criticism when he predicted at a press conference that the Supreme Court, which at the time was reviewing the constitutionality of the Affordable Care Act,122 would not take the “unprecedented extraordinary step” of overturning the law. Taking a page from his opponent’s playbook, he further suggested that, if the Supreme Court held that such a law was unconstitutional, such a ruling would exemplify judicial activism.123 The next day the President explained:

[T]he Supreme Court [has] the final say on our Constitution and

_1_supreme‐court‐campaign‐finance‐case‐chief‐justice‐john‐roberts?_s=PM:POLITICS. 120 One who might not agree with the accuracy of the President’s legal analysis is Justice

Alito, who reportedly mouthed the words “not true” when attending the State of the Union

address. Justice Mouths ‘Not True’ as Obama Slams Court, FOXNEWS.COM (Jan. 28, 2010),

http://www.foxnews.com/politics/2010/01/27/justice‐mouths‐true‐obama‐slams‐court. 121 It is beyond the scope of this article to discuss general criticism of Supreme Court

decisions from the public and the press. Such criticism spans the entire history of the Court.

Such criticism, even if intense, is plainly appropriate and proper.

There will be and there should be popular response to the Supreme Court’s decision—not

just the “informed” criticism of law professors but the deep‐felt, emotion‐laden,

unsophisticated reaction of the laity. This is so because more than any court in the modern

world the Supreme Court “makes policy,” and is at the same time so little subject to formal

democratic control.

Louis L. Jaffe, Impromptu Remarks, 76 HARV. L. REV. 1111, 1111 (1963). 122 Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 (2010). 123 Corbett B. Daly, Obama: Supreme Court Overturning Health Care Would Be

ʺUnprecedented,ʺ CBSNEWS.COM (Apr. 2, 2012, 2:26 PM), http://www.cbsnews.com/8301‐

503544_162‐57408181‐503544/obama‐supreme‐court‐overturning‐health‐care‐would‐be‐

unprecedented/.



our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature . . . [a]nd so the burden is on those who would overturn a law like this.124

The President’s political opponents leapt to defend the concept of judicial independence with a speed and vigor that would have made Chief Justice Marshall smile. Republican presidential candidate Mitt Romney termed the remarks “an attack” that “[are] terribly disrespectful of one of the branches of our government.”125 The Senate Minority Leader Mitch McConnell opined that the President’s statement was “intolerable to all of us” and concluded that the President “was no longer trying to embarrass the court after a decision; rather, he tried to intimidate it before a decision ha[d] been made.”126 Another Republican Senator called President Obama a “bully” for making the remarks; while Representative Lamar Smith stated that the President “should not be in any shape [or] form threatening the Supreme Court and making statements that are inappropriate or deemed trying to intimidate the Supreme Court.”127 One must take the Republican criticism of a Democratic President in its proper context and remember that politics often makes good theater. Was President Obama trying to cast himself in the light of FDR, bravely battling the “nine old men” as the 1930s Supreme Court overturned popular New Deal legislation? Perhaps. Was he trying to rally popular support for one of his most significant pieces of legislation? Undoubtedly. Was he trying to send a message to any Supreme Court Justice on the fence? Probably. Was he trying to “bully” or “intimidate” the Supreme Court? Not a chance. To characterize the President’s comments as an attack upon the Supreme Court’s independence, or as an effort at intimidation, is to misconstrue reality due to excessive political partisanship. To repeat, there simply is nothing wrong—and actually a lot right—with a branch of government forcefully arguing its position. Luckily in this country, judges do not quake

124 Bill Mears, Holder: Obama Recognizes Supreme Courtʹs Authority, CNN.COM (Apr. 5, 2012,

2:03 PM), http://www.cnn.com/2012/04/05/us/obama‐judges/index.html. 125 Ryan Grim & Sam Stein, A New Love Affair: Republicans Rally to Defend Judges,

HUFFINGTONPOST.COM (Apr. 5, 2012, 4:01 PM), http://www.huffingtonpost.com

/2012/04/05/republicans‐judges‐supreme‐court_n_1406580.html [hereinafter A New Love

Affair]. 126 Sunlen Miller, McConnell Urges Obama to ‘Back Off’ on Supreme Court Comments,

ABCNEWS.GO.COM (Apr. 5, 2012, 12:00 PM), http://abcnews.go.com/blogs/politics/2012/04/

mcconnell‐urges‐obama‐to‐back‐off‐on‐supreme‐court‐comments/. 127 A New Love Affair, supra note 125.



in their shoes when some politician criticizes their decisions,128 but such political attention may cause a judge to hone his or her decision to display forceful, comprehensible reasoning. Thus, the interplay is beneficial to both branches and to society in general.

D. Congressional Changes to Constitutional Common Law

The Supreme Court frequently creates constitutionally inspired rules and doctrines that are best described as “constitutional common law.”129 On the surface, this decisional law resembles constitutional interpretation—but it is not. Thus, Congress can play a role in shaping this constitutionally inspired common law by the passage of legislation. When Congress does so, the Supreme Court has a duty to respect the legislative branch’s coordinate role. Constitutional common law, therefore, provides Congress the opportunity to have a very productive partnership with the Supreme Court in crafting the contours of important constitutionally inspired doctrines.

A brief example of this process may be helpful. In its well‐known decision Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,130 the Supreme Court implied a civil damages cause of action from the Fourth Amendment. The Court reasoned, in part, that such a remedy was appropriate because Congress had not provided Mr. Bivens another remedy “equally effective in the view of Congress.”131 Although inspired by the Fourth Amendment, one cannot seriously consider the Bivens remedy to constitute an interpretation of the words of the Fourth Amendment. Thus, Bivens is an example of constitutionally inspired common law. Congress, as with any judicially‐created common law, can alter the contours of the damage remedy or provide an alternative remedy132 or, in special instances, eliminate the remedy altogether.133 With

128 At least this is true of all Article III judges and the judiciary in those states, like

Massachusetts, who enjoy the protection of life tenure. 129 See Henry P. Monaghan, The Supreme Court 1974 Term, Foreword: Constitutional Common

Law, 89 HARV. L. REV. 1, 1, 11 (1975); Richard E. Welch III, Mr. Sullivan’s Trunk: Constitutional

Common Law and Federalism, 46 NEW ENG. L. REV. 275, 275, 291‐94 (2012). 130 403 U.S. 388 (1971). 131 Id. at 397. 132 See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 423, 429 (1988) (holding that

congressionally enacted civil service remedies foreclosed traditional Bivens remedy for

damages); Bush v. Lucas, 462 U.S. 367, 390 (1983). 133 See, e.g., United States v. Stanley, 483 U.S. 669, 683‐84 (1987) (finding no remedy because

suit arose in military context which constitutes a “special factor” counseling hesitation);

Chappell v. Wallace, 462 U.S. 296, 304‐05 (1983).



constitutional common law, Congress plays a coordinate role in shaping the rule or doctrine.134

The so‐called “prudential” components of the Article III standing doctrine also are best considered constitutional common law that may be adjusted by Congress. Although the Court prefers to explain most standing doctrine cases as straight interpretations of the “case or controversy” requirement, a closer look at the doctrine reveals that it “embraces several judicially self‐imposed limits of the exercise of federal jurisdiction.”135 The prudential component of standing, largely inspired by separation of power concerns, but not required by the Article III “case or controversy” requirement, was explicitly recognized by the Court in Elk Grove Unified School Dist. v. Newdow.136 Although the Court does not currently define its prudential doctrine in this way, it is easiest to categorize it as constitutional common law. Congress has a role in restricting this discretionary component of the standing doctrine. In other words, even though the Court might consider the litigant’s interest too general or the alleged injury not sufficiently imminent, the Court will recognize a cause of action “if Congress has appropriately authorized such suits.”137 As Justice Harlan explained, “[a]ny hazards to the proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress . . . .”138 More

134 Other examples of constitutional common law include Supreme Court decisions

striking down state laws as unconstitutionally impeding interstate commerce under the

“dormant” Commerce Clause. See Monaghan, supra note 129, at 17. Congress can affirmatively

approve state laws that burden interstate commerce, even though the Court would have

invalidated such laws under the dormant Commerce Clause. See, e.g., Prudential Ins. Co. v.

Benjamin, 328 U.S. 408, 421, 423, 434 (1946). Likewise, certain criminal procedure doctrines

like the “exclusionary rule” or the “fruit of the poisonous tree” might be considered rules that

effectuate constitutional guarantees but could be altered by Congress should the legislature

provide an equally effective remedy. See Bivens Doctrine in Flux: Statutory Preclusion of a

Constitutional Cause of Action, 101 HARV. L. REV. 1251, 1251 (1988). 135 Allen v. Wright, 468 U.S. 737, 751 (1984). 136 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11‐12 (2004) (“[O]ur standing

jurisprudence contains two strands: Article III standing, which enforces the Constitution’s

case‐or‐controversy requirement . . . and prudential standing, which embodies ‘judicially self‐

imposed limits on the exercise of federal jurisdiction.’”). 137 Flast v. Cohen, 392 U.S. 83, 131 (1968) (Harlan, J., dissenting). 138 Id. at 131‐32. In his well‐known United States v. Richardson concurrence, Justice Lewis

Powell picked up on Harlan’s suggestion that litigants with generalized grievances are “not

constitutionally excluded from the federal courts” but the federal courts should use “self‐

restraint” and decline jurisdiction (using the standing doctrine) in “taxpayer or citizen

advocacy” lawsuits. 418 U.S. 166, 189, 196 (1974) (Powell, J., concurring). At least several

members of the current Supreme Court “have adopted the position set forth by Justice Powell

in his concurrence in Richardson and have ‘limit[ed] the expansion of federal taxpayer and



recently, Justice Kennedy reiterated Congress’s role in shaping the standing doctrine: “In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before . . . .”139 Recognizing this, Congress has authorized so‐called “citizen suit” provisions that give a litigant standing to sue when his or her rather general statutory rights are violated. Even though these types of lawsuits often present generalized grievances with rather attenuated chains of injury causation, the Supreme Court has authorized such congressionally‐created standing.140 In plain language, Congress cannot alter the Article III requirement that there exist a “case or controversy” but Congress can instruct the Court to pare back its self‐imposed prudential standing doctrine to its constitutional minimum. The current Court’s acceptance of Congress’s role in this regard is an encouraging sign of communication between the two branches.

Not so encouraging is the Court’s failure, in other contexts, to recognize the existence of constitutional common law, and Congress’s powers to modify it. The prophylactic rules established by the Court in order to effectuate various Bill of Rights guarantees are best considered an exercise in constitutional common law. For example, the Supreme Court’s famous recitation of rights to be given to suspects in police custody prior to questioning are derived from due process concerns enshrined in the Fifth Amendment. In creating the Miranda rights, however, the Court was not suggesting that interpretation of the Fifth Amendment required these precise warnings. Indeed, the Miranda decision contains language that indicates that Congress could implement other measures in lieu of the court‐suggested warnings, as long as they are equally as effective in protecting an individual’s due process protections. Just as with the Bivens remedy, Congress could choose to have a hand in effectuating these important criminal procedural rights. So it seemed until the Court’s opinion in Dickerson v. United States.141

Dickerson involved a Congressional statute that allowed into evidence a defendant’s confession as long as it was voluntary. The statute set forth that the “voluntariness” of the statement was to be determined from the

citizen standing in the absence of specific statutory authorization to the outer boundary drawn by

the results in Flast.’” Hein v. Freedom From Religion Found., 551 U.S. 587, 610 (2007) (Alito, J.,

joined by Roberts, C.J., and Kennedy, J.) (emphasis added) (quoting Richardson, 418 U.S. at

196). 139 Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring). 140 See, e.g., Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000); FEC

v. Akins, 524 U.S. 11, 19 (1998). Justices Scalia and Thomas dissent in these decisions and

would prefer the narrower approach taken in Lujan v. Defenders of Wildlife, 528 U.S. at 198

(Scalia, J., dissenting); Akins, 524 U.S. at 30 (Scalia, J., dissenting). 141 530 U.S. 428, 432 (2000).



totality of the circumstances. One of the factors the court could consider was whether the Miranda warnings had been provided. The majority opinion did not rule that the Congressional statute violated the Fifth Amendment. The Court, instead, held that “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress . . . .”142 Writing for the majority, Chief Justice Rehnquist explained that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”143 According to this reasoning, the Court in Miranda was actually interpreting the Fifth Amendment self‐incrimination clause. In essence, the Court refused to acknowledge the existence of constitutional common law. The Court in Dickerson set up a false choice: “This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction.”144

In reality, the Supreme Court in Miranda, Bivens, and other cases, is doing something in between constitutional interpretation and establishing rules of court. That is, the Court is effectuating Bill of Rights guarantees by creating remedies that are constitutionally inspired but not required. Of course, Congress cannot reverse a constitutional interpretation of the Court by mere legislation, but it should have a role in shaping and tailoring such court‐created remedies. By denying the existence of constitutional common law in the Miranda context, the Court is unjustifiably limiting the role of Congress.145 Even accepting that the Court is the supreme interpreter of certain constitutional provisions, the Dickerson Court displays a regrettable knee‐jerk reaction against Congressional assistance in defining the contours of judicially created and constitutionally inspired rules and doctrines. This is an area where the Court certainly should listen to Congress, but refuses to consider the option. This failure to acknowledge Congress’s coordinate role in developing constitutional common law is particularly regrettable. When the Court extrapolates rules from constitutional postulates, it is most likely to be viewed as overreaching or “activist.” The Court can avoid or deflect most of the public criticism of its role by respecting Congress’s role in crafting or modifying these constitutionally inspired remedies.

142 Id. 143 Id. at 437. 144 Id. 145 In his dissent, Justice Scalia (joined by Justice Thomas) also refuses to take the approach

that the Miranda warnings were a legitimate exercise of constitutional common law. While he

acknowledges the concept, he considers the Supreme Court’s adoption of “prophylactic rules

to buttress constitutional rights” as “judicial overreaching” and a “lawless practice.” Id. at 457,

465 (Scalia, J., dissenting).



E. Congressional Attempts to Correct the Court’s Erroneous Statutory Interpretation

This same reluctance to listen to Congress, coupled with a tendency toward judicial imperialism, is particularly apparent in cases in which the Court reviews congressional statutes that alter previous judicial statutory interpretation. The Plaut v. Spendthrift Farm, Inc.146 decision displays this discouraging tendency in spades. A bit of background may be helpful. Section 10(b) of the Securities Exchange Act of 1934 was long interpreted to provide for an implied cause of action for individuals defrauded by stock brokers and related individuals. Section 10(b) did not contain an explicit statute of limitations provision, but the federal courts consistently assumed, as a matter of federal common law, that the limitations period was the same length as the state’s statute of limitations for fraud actions. All went smoothly for years until the Supreme Court surprised many by ruling in Lampf v. Gilberston that the limitation period was considerably shorter: “litigation . . . must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.”147 The Lampf decision caught Congress’s attention due to the prevalence and importance of securities fraud litigation. Congress responded by restoring the earlier, often longer, state limitations period. Congress explicitly made the statute retroactive so that the Lampf litigants and others could have their day in court.148

The Supreme Court declared this statute unconstitutional in Plaut. Trumpeting Marbury’s famous phrase that it is the “province and duty” of the judicial department “to say what the law is,” the Court found that the statute retroactively commanded the “federal courts to reopen final judgments” and, thus, “violated [the] fundamental principle” that Article III gives the federal judiciary “the power, not merely to rule on cases, but to decide them.”149 Citing the much maligned and ancient United States v. Klein decision,150 the Court reasoned that Congress could not correct a final

146 See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995). 147 501 U.S. 350, 364 (1991). 148 See Fed. Deposit Ins. Improvement Act of 1991, Pub. L. No. 102‐242, 105 Stat. 2236, 2387

(1991). The Insurance Improvement Act eventually became part of the Securities Exchange Act

of 1934. See Securities Exchange Act of 1934, Pub. L. No. 112‐106, § 27A(a), 442 (2012), available

at http://www.sec.gov/about/laws/sea34.pdf. 149 Plaut, 514 U.S. at 218‐19. 150 80 U.S. 128 (1872). The literature concerning and criticizing the rather ancient and

unique Klein decision is voluminous. See, e.g., Barry Friedman, The History of the

Countermajoritarian Difficulty, Part II: Reconstruction’s Political Court, 91 GEO. L.J. 1, 34 (2003)

(“calling [the Klein reasoning] opaque is a compliment”); Gordon G. Young, Congressional

Regulation of Federal Courts’ Jurisdiction and Processes: United States v. Klein Revisited, 1981 WIS.



judicial decision: “having achieved finality . . . a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”151 The most understandable reading of Plaut is that Congress, because of separation of power concerns, cannot correct judicial statutory interpretation in a case already decided.

Although there may be a surface appeal to the Plaut reasoning, it is simply wrong, and the decision inappropriately limits Congress’s ability to tell the court “what the law is” when it comes to a statutorily‐created right. The Court’s separation‐of‐powers analysis is undercut considerably, because Congress plainly may alter the final judgment of a federal court when that judgment includes injunctive relief.152 If separation of power concerns create some sanctity for a final damages judgment in federal court, why does that constitutional limitation disappear when the federal court final judgment is based in equity? The matter, however, is simpler than some law school exercise of distinguishing between cases in law and cases in equity. It is important to remember that we are talking about statutory rights created by Congress. These rights may be altered or eliminated at the whim and will of Congress. Any later change in a law undoubtedly affects the rights of the public and litigants who have filed federal lawsuits based on those statutory rights. Nevertheless, Congress plainly can do this.153 Certainly Congress cannot give jurisdiction to the federal courts to hear a case and, then, tell the courts “how to decide it.”154 That, however, is not what the Plaut decision is all about. The legislation struck down in Plaut never suggested—never mind told—any court “how to decide” the case. The legislation simply told the federal court to hear the case and decide it any which way the court wanted. Congress always has the definitive word on the allocation of jurisdiction to the lower federal

L. REV. 1189, 1195 (1981) (noting that because of its hazy reasoning the decision may “be

viewed as nearly all things to all men”); Henry M. Hart, The Power of Congress to Limit the

Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1373 (1953)

(narrowly interpreting Klein to prohibit Congress to direct an Article III Court on “how to

decide” a case). See generally PETER W. LOW ET AL., FEDERAL COURTS AND THE LAW OF

FEDERAL‐STATE RELATIONS 316‐17 (7th ed. 2011). 151 See Plaut, 514 U.S. at 227‐28. 152 See, e.g., Miller v. French, 530 U.S. 327, 344 (2000) (attempting—in this author’s view,

unsuccessfully—to distinguish equity judgments encompassing injunctive relief from

monetary damage judgments); see also Pennsylvania v. Wheeling & Belmont Bridge Co., 59

U.S. 421, 458 (1855). 153 Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 436 (1992). 154 Hart, supra note 150, at 1373.



courts.155 To quote Chief Justice Marshall’s corollary to Marbury: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”156 For the Court to rule that Congress could not grant jurisdiction to hear a federal statutory cause of action is not only a profound mistake, but also a reflection of an unwarranted attitude that smacks of judicial mistrust of Congress and/or overprotection of judicial “turf.”157

Even beyond the jurisdictional context, it is vital to our democracy for Congress to be able to inform the federal judiciary when a court has misinterpreted Congress’s intent, and there is no reason why that congressional correction may not be applied retroactively. After all, people’s rights are at stake, and it was the Court, not Congress, who incorrectly interpreted the statute. The Plaut Court seems to consider Congress’s input to be inappropriate, at least to the extent it attempts to correct the Court’s past mistake.158 Some may view the approach taken in Plaut as an arrogant judicial power grab. It certainly appears to be a misuse of the valuable tool of judicial review that, if persisted in, could significantly lower the esteem of the Court and undermine the democratic values of the nation.

Nevertheless, the significance of Plaut should not be overstated. Plaut’s reasoning is limited to the somewhat unusual situation where Congress legislates in a retroactive fashion. Plaut does not affect Congress’s ability to prospectively amend statutes that have been interpreted by the Court contrary to the desires of Congress.159 In this fashion, Congress has a ready and effective means to communicate to the federal courts regarding the scope of statutory rights and obligations.

III. Concluding Thoughts: Listening in a Principled Fashion

As the Corps of Discovery traveled up the Missouri River in 1804, Meriwether Lewis and William Clark eagerly anticipated their first contact with the powerful Teton Sioux tribe. The tribe’s downriver neighbors and

155 Sheldon v. Sill, 49 U.S. 441, 449 (1850); see Hart, supra note 150, at 1365. 156 Cohens v. Virginia, 19 U.S. 264, 404 (1821); see Meredith v. City of Winter Haven, 320

U.S. 228, 237 (1943). 157 See Danforth v. Minnesota, 552 U.S. 264, 291‐92 (2008) (Roberts, C.J., and Kennedy, J.,

dissenting). In Danforth, the majority upheld the unsurprising and well‐established ability of a

state court, interpreting state law, to grant more expansive civil rights than the Supreme

Courtʹs interpretation of the Constitution. Id. at 266. The two dissenting justices, quoting

Marbury, considered such state action as intruding on the “province and duty” of the Court

“to say what the law is.” Id. at 291‐92. 158 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227, 237 (1995). 159 Id. at 237. At least this is true unless the Court truly wishes to reinvigorate the Klein

decision to its most expansive holding. This, however, appears unlikely.



relations, the Yankton Sioux, met first with the expedition, and Yankton Chief Arcawechar issued this warning about the dominant, confident Teton Sioux: “But I fear those nations above will not open their ears, and you cannot I fear open them.”160 May the same not be said of the current Supreme Court. For the Court’s failure to open its collective ears only invites more controversy, which, in the long run, may well undermine the unquestioned authority the Court currently enjoys. The title of this Article asks two questions: 1) Should we listen to the Supreme Court?, and 2) Should the Court listen to us? The answer to both questions is: always. Yet, the two questions, or obligations, are necessarily linked. If the Supreme Court does not heed Congress’s efforts to mold constitutional common law and define statutory rights, or ignores the President’s legitimate criticism of developing constitutional doctrine, or casts a blind eye to the state courts’ efforts to adapt novel constitutional holdings to local conditions, then the Supreme Court risks not being listened to by other governmental branches or, more dangerously, the general population.

Encouraging the Supreme Court to listen more attentively to Congress, the President, state courts, and other groups does not suggest that the Court should function as a political branch of government. To the contrary, I hold the somewhat idealistic and old‐fashioned view that judicial decisions are to be made in a neutral and principled fashion.161 This view is often ridiculed in the popular press162 and put into question every time one watches a recent Senate confirmation hearing of a Supreme Court nominee. Still, striving for the neutral, principled interpretation of the law is the justification behind Marbury and the valuable counter‐majoritarian protections of judicial review. Should the federal judiciary be considered simply another political branch, the threats of earlier eras to ignore judicial holdings are much more likely.

Without echoing Lord Acton’s famous dictum, one can safely observe that different branches of government are prone to jealously guard and expand their power. Public acceptance of judicial review is at historically high levels. This public acceptance, however, should not encourage the Court to ignore attempts by Congress to craft modifications to constitutionally‐inspired doctrines, or turn a deaf ear to state court

160 STEPHEN E. AMBROSE, UNDAUNTED COURAGE, MERIWETHER LEWIS, THOMAS JEFFERSON,

AND THE OPENING OF THE AMERICAN WEST 164 (1996). 161 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1,

19 (1959). 162 See, e.g., JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT

338‐39 (2007) (arguing that Supreme Court decisions always have been and should continue to

be influenced by political considerations).



attempts to define or distinguish novel constitutional interpretations, or recognize the appropriate role of Congress in creating statutory rights. While the judiciary should be insulated from the pressure of politics, it only strengthens itself by paying attention to suggestions from other state and federal governmental branches.

hon. richard e. welch, iii: should we listen to the supreme court and should the court listen to us?

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