To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the controversy over autonomy in executive interpretation. Most persons agree that the executive branch has an obligation to enforce valid final judgments rendered by the judiciary. What has been, and remains, controversial is whether the executive is bound to follow the understanding of law set forth in judicial opinions in future controversies involving persons not party to a judicial judgment. Consequently, in order to determine whether the executive has autonomous powers of interpretation, it is necessary to examine the nature of the executive obligation to the understanding of law set forth in judicial opinions.
I will argue that the nature of that obligation cannot be resolved by examining pronouncements bearing on the subject by past Supreme Court Justices or Presidents. Nor can the answer be deduced from provisions of the Constitution, from specific judicial precedents, or from assumptions about the nature of the judicial hierarchy. Attempts to resolve the question using these types of arguments ultimately beg the underlying issue in dispute. Moreover, although the fundamental question is jurisprudential in nature, I will not seek to resolve it by linguistic or logical analysis. Instead, I will offer two distinct lines of argument – one coherentist and the other consequentialist – each of which provides some support for the conclusion that judicial opinions ought to be regarded, at least by executive actors, as explanations for judgments.
Judges | Law
Thomas W. Merrill,
Judicial Opinions as Binding Law and as Explanations for Judgments,
Cardozo L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3702