63. What happens when the Supreme Court violates the Constitution?

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

These are the words of the great anti-Jeffersonian, Chief Justice John Marshall, announcing the theory of judicial supremacy in Marbury v. Madison. 

For those of us working inside the judicial pyramid, the Constitution has no meaning independent of the Supreme Court's interpretations of it.  The judicial hierarchy works on the principle that a lower court judge cannot question the decision of a higher court, and the Supreme Court is highest of all.  So if the Supreme Court says that the Constitution's guarantee of equal protection of the laws means that the states can systematically discriminate against Blacks, then, by jingo, that's what the Constitution means.

Or, rather, that's what it meant, right up through the morning of May 17, 1954, when it ceased to mean that and instead started to mean exactly the opposite.

I don't know how else to read Brown v. Board of Education except as an admission that the Supreme Court had been violating the Constitution for the previous 67 years.  (Almost to the day: Plessy v. Ferguson's 67th anniversary came the day after Brown was decided.)  Worse than that: the Supreme Court had actually forbidden the lower courts of the nation from enforcing the 14th Amendment.

In a case that arose in the mid-1970s, involving a girl who had testified in an Ohio preliminary hearing and then, in very '70s-ish way, went to California and dropped out, the Supreme Court had to decide whether the defendant's sixth amendment right "to be confronted with the witnesses against him" was violated by the prosecution's use use of the girl's prior testimony as evidence against him.   The case,  known as Ohio v. Roberts and decided in 1980, constitutionalized the law of hearsay.  From that date forward, the sixth amendment, as applied to the states through the operation of the 14th amendment, required all state courts to follow a certain set of rules when applying the hearsay rule in criminal cases.

That could only mean that the state courts had been violating the sixth amendment for at least the previous 112 years, since the 14th amendment was ratified in 1868.  How could the Supreme Court have tolerated such a lawless state of affairs for so long?

No matter, because in 2004 it turned out that Ohio v. Roberts was not only wrong, but ridiculous.  Its "framework is so unpredictable that it fails to provide meaningful protection from even core confrontation violations."  It suffered from an "unpardonable vice" - and, really, how many vices can you think of that are truly unpardonable? 

From 1980 to 2004, the Supreme Court inflicted its unpardonable vice on all the lower courts in the land.  It used its institutional power to ensure that criminal defendants across the country were deprived of their sixth amendment rights.

If the 2004 decision, Crawford, is right, then the Court violated the Constitution for the entire period from 1868 to 2004.  And if the Court has been as lawless as Crawford says it's been, why should we have any confidence in Crawford itself? 

To believe as an article of faith that "the Constitution" and "decisions of the United States Supreme Court" are one of the same is to

declare that a decision which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory until overturned by the very institution responsible for its promulgation.  It would declare that, if the Supreme Court shall do what is expressly forbidden, or omit to do what is expressly required, such act or omission, notwithstanding the express prohibition or requirement, is in reality effectual. It would be giving to the Supreme Court a practical and real omnipotence with the same breath which professes to restrict its powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Comments

[MF]

I'm not sure I understand what you're getting at in this post. Do you think lower courts should not be bound by supreme court decisions because sometimes they might get something wrong?? I very often don't agree with the supreme court, but I do think it's necessary for courts across the country to at least try to apply the same rules.

[Joel Jacobsen]

I certainly agree that lower court judges should consider themselves bound by Supreme Court rulings. In fact, I think they should be more faithful than they have been in the past few years, when the Rehnquist Court so dramatically decreased its caseload. With the Court hearing so few cases, Court of Appeals judges had little reason to fear being reversed, no matter how outrageously they bent the law.

But that's an entirely separate question than whether the Supreme Court itself violates the Constitution, and as noted in the post, the Court itself tells us that it has done so repeatedly. The problem is inherent in any system of government that rests ultimate power in one place, be it president-for-life's palace or Supreme Court building.