Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

Conclusion

It is emphatically the duty and province of the judiciary to say what the law is. Chief Justice Marshall, Marbury v. Madison (1803) In the preceding pages I have explained what can happen after the Supreme Court exercises its power of judicial review, striking down laws as unconstitutional. With all the attention focused on who the Supreme Court justices are, how each justice views the Constitution , and how each justice might vote on the next big case, it is surprising how relatively little attention is paid to the actual consequences of constitutional decision making. It is particularly curious that we do not always understand what happens after the Court decides, because who the justices are, how each justice views the Constitution, and how each justice might vote on the next big case are important only if Supreme Court decisions matter. Most individuals take it for granted that these decisions matter, but political scientists have been much more skeptical of the Court’s power to transform society. When the Supreme Court declares laws unconstitutional, most people assume that similar laws around the country are also unconstitutional . When the Supreme Court decided City of Richmond v. Croson, the decision implicated the other 200 or so minority business enterprise (MBE) programs around the country. When CONCLUSION 156 MERELY JUDGMENT the Supreme Court decided R.A.V. v. City of St. Paul, the decision implicated hundreds of speech codes around the country. When the Supreme Court decided Engel v. Vitale and Abington Township v. Schempp, the decisions implicated all public schools around the country that used prayer in the school. When the Supreme Court decided Texas v. Johnson, the decision implicated flag burning statutes in forty-eight other states. And when the Supreme Court decided INS v. Chadha, the decision implicated more than 200 other legislative vetoes embedded in federal legislation. Yet in each of these cases, unconstitutional laws have largely persisted. Responses to Supreme Court decisions are quite varied. Some cities and other governments did dismantle their unconstitutional affirmative action programs in response to Croson. Some universities did repeal their unconstitutional speech codes after R.A.V. In light of Engel and Abington Township, some public schools stopped offering Christian benedictions to start the school day. No state entirely repealed its flag burning statute in response to Johnson, though some states have now limited the kinds of actions that might be prosecuted. And after Chadha, Congress has in some instances modified the form of legislative vetoes. But quite surprisingly to many, following Croson, at least 150 cities established new unconstitutional affirmative action programs; after R.A.V., more than 100 colleges and universities enacted new unconstitutional speech codes; and despite a series of Supreme Court decisions striking down improper mixtures of church and state, to this day approximately half the public schools in the South routinely violate the establishment clause of the Constitution. While states have not established new flag burning statutes, most states have simply left their questionable statutes on the books unchanged or have modified their statutes in line with an unconstitutional federal flag burning statute overruled in Eichman. And despite the Court’s clear rules in Chadha, Congress has continued to pass statutes containing legislative veto provisions. Many of these unconstitutional laws have attracted litigation. Courts have repeatedly struck down challenged affirmative action programs, speech codes, school prayer, flag burning statutes, and legislative vetoes. This has been true whether the affirmative action programs have been called “quotas” or “goals,” whether the speech CONCLUSION 157 codes have been called “harassment policies” or “Fundamental Standard Interpretation: Free Expression and Discriminatory Harassment .” This has been true whether the prayer came in the form of commencement prayers or moments of silence. This has been true whether riots result from the flag burning or someone defecates on a flag. And this has been true whether Congress calls legislative vetoes “committee vetoes” or “congressional recommendations.” The lower courts are not a major obstacle to ending the persistence of unconstitutional laws. Yet despite the litigation directed toward these unconstitutional laws, legislatures and executives at all levels of government have been able to maintain and in some cases increase their supply of unconstitutional laws. They have done so by capitalizing on the social, legal, and political barriers to litigation. Litigation is not cost-free, and when the elected branches can increase these costs they are able to thwart the...