Evading Judicial Supremacy

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I am not sure why these alumni of the University of Chicago Law School believe that their having walked the same sidewalks as Jonathan Mitchell, the inspiration for the Texas law against post-heartbeat abortions, gives their insights about that law any extra weight. But it’s worth giving the content of their argument a little attention:

Mr. Mitchell should know better than to construct a law deliberately intended to evade federal law. That approach is neither smart nor creative — it is lawless.

No matter what you believe about Roe v. Wade, deliberately creating a state law to dodge current Supreme Court precedent is dangerous. It erodes the rule of law and undermines our legal system.

The statement’s author or authors have traded brevity for precision. They may mean that it is lawless, dangerous, etc., to pass a law that conflicts with Supreme Court precedent, even if the law’s drafters believe that precedent to be grievously out of sync with the Constitution — indeed, even if the law’s drafters are correct in believing that. In that case, their objection goes well beyond Mitchell’s handiwork to encompass, for example, the Mississippi ban on abortions after 15 weeks, which doesn’t present any novel procedural issues; or the federal ban on partial-birth abortion, which essentially thumbed its nose at an existing precedent but then got upheld anyway. If that’s what they mean, they are making a standard criticism of anti-abortion laws.

Or they may have a more specific objection in mind: that it is lawless, dangerous, etc., to write a law that is insulated from review by the federal courts. But the Texas law is not drafted to be protected to be immune to judicial review altogether. What it avoids completely is any pre-enforcement injunction. This has become an important part of the legal landscape, but it is not a basic building block of our constitutional system and was rarely used for much of our history. Think of a landmark constitutional case from before the 1980s or so, and you’re almost always going to find a law that was implemented and then challenged as unconstitutional, and a court that was considering the actual application of the law rather than a hypothetical situation.

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Either version of the objection assumes that political actors are bound to subordinate their view of the Constitution to that of the Supreme Court even when the Court has it wrong. That assumption goes well beyond anything that John Marshall ever said about the rule of law, and contradicts what Abraham Lincoln did. It posits that state governments, as well as the other branches of the federal government, are bound to refuse to assert their powers to check the courts even in ways that the Constitution appears to leave open to them.

It assumes, that is, that the rule of law is equivalent to judicial supremacy. If Chicago teaches that lesson, it’s to Mitchell’s credit that it didn’t take with him.

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