Therein lies the contradiction.
Under stare decisis, an unconstitutional Supreme Court ruling (such as Plessy) could never get back to the Court for review. Precedent would always be upheld. But it goes a step further. Not only are we told that precedent is binding on the lower courts, but on the highest court, as well. That means, logically, that no Supreme Court ruling could ever be overturned. Some believe that even a conservative majority to the Supreme Court would have to uphold Roe V. Wade. That misguided thinking may have already played out, as Sandra Day O'Connor, reportedly pro-life, looked at Roe as binding precedent.
Ridiculous, really, when you think about it. Liberals ignore the Constitution (which is the true precedent), create their own precedent, and then demand that conservatives obey their will and similarly ignore the Constitution.
Originally, the court respected state's rights. That was the precedent, consistent with the Constitution. If there is some controlling principle of stare decisis, how did the court change into the all-powerful, tyrannical body we see today? Truly following stare decisis would have resulted in a court unchanged from its inception.
What got us into this mess? Ironically, the very thing that gets us out.
It’s Marbury V. Madison, from which we are told the Supreme Court gained the ultimate interpretative power over the Constitution. Although no one noticed it for 150 years, Marbury made the judiciary the supreme branch of government, free to define the limits of the other branches, while being confined by nothing but its own self-restraint. Even though the judicial branch was designed to be the least powerful branch, all levels of government must obey the Court’s interpretation of the Constitution, even when it is at odds with the words of the Constitution, itself. That’s what we’re told.
Problem is, Marbury does not say that. Far from diminishing the Constitution, Marbury reaffirms the Constitution as the supreme law of the land, and the people as sovereign. It emphasizes the need to reject any action by government that is unconstitutional. That important principle applies not just to the judiciary, but to all of government.
Said Justice Marshall:
The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. (Marbury V. Madison, 1803)
Judges at all levels are required to reject anything, even case law, that runs afoul of the Constitution. They took an oath impartially discharge and perform all their duties according to the Constitution, not to dutifully uphold unconstitutional rulings.
The controlling principle in any given case is not precedent, not stare decisis, but the Constitution as written. Alito was wrong to say: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent."
ping for later
Gelato,
I agree with much of your analysis, but the fact is that no federal appeals judge -- Alito, Luttig, McConnell, JRB, heck, even Scalia when he was on the D.C. Circuit -- is going to uphold a law when the Supreme Court just struck down an identical law in a major opinion two weeks before. Lower court judges are going to follow controlling, on-point Supreme Court precedent, even if they disagree with it as a matter of constitutional interpretation, if for no other reason than that doing otherwise means certain and immediate reversal. The Supreme Court, on the other hand, has the power to revisit (and reverse) its own precedents without that threat.
By the way, Judge Luttig was in a situation similar to Alito’s after the Supreme Court's PBA decision in Carhart was handed down. A lower court had held the Virginia PBA ban unconstitutional, and Luttig issued an order staying the ruling (and permitting the ban to stand) until the Supreme Court ruled on Carhart. After the Carhart ruling, Luttig joined in lifting his stay, thus reinstating the lower court’s decision. Luttig’s opinion, which again is very narrow, simply said that Carhart controlled, and required striking down the ban. The case is Richmond Medical Center v. Gilmore, http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=4th/981930r3pv3.html .
So both Alito and Luttig ruled that after Carhart, the PBA bans couldn’t be sustained as written (and each, interestingly, wrote separately to emphasize the narrowness of the grounds on which they were ruling). This is just an unremarkable case of appeals courts following controlling Supreme Court precedent. Both Alito and Luttig, as lower court judges, have to accept Roe as controlling precedent. That says nothing about how they would rule on Roe if they were appointed to the Supreme Court.
THank you for that excellent exposition. I stand enlightened. I believe that unconstitutional rulings from the courts must be disobeyed. Perhaps Civil Disobedience could be a way to start to make inroads against the Court's authority. It is never far from my mind that the court has no mechanism of enforcing its rule.