What status do Supreme Court decisions have for officials in the political branches of our government? Six months ago, Attorney General Edwin Meese III rekindled controversy over this enduring and troublesome question when he claimed in a widely reported lecture that Supreme Court decisions interpreting the Constitution are not the supreme law of the land, and are properly subject to forms of opposition by other governmental officials. The general reaction to the speech was that it was meant to reduce the perceived authority of Supreme Court opinions, and a close reading of the speech certainly leaves this impression. Yet, even one who is unsympathetic to that apparent purpose must look hard to find passages that are definitely unsound. Like many speeches by political figures, this one manages to obscure or to avoid most controversial issues. What remains is a collection of platitudes plus some disquieting illustrations whose total weight seems greater than the sum of the parts.
If this appraisal is accurate, the Attorney General's speech may seem a poor starting point for an academic lecture. Professors are not politicians. We are supposed to identify and struggle with hard issues, not knock down straw men or spend much time chastising those who do. But focusing on what Mr. Meese has said turns out to be a useful way to approach this subject. Mr. Meese did not ignore well-known systematic treatments of the topic; the relevant dialogue has often consisted of oversimplification and oversimplified rebuttal. Careful analysis of the most recent oversimplifications can lead us to grasp what is clear and what is not, to identify more precisely the factors that should bear on the authoritativeness of Supreme Court decisions, and to move to a deeper level of understanding whose value transcends the immediate concerns of this administration and its critics.
Constitutional Law | Law | Supreme Court of the United States
Constitutional Decisions and the Supreme Law,
U. Colo. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3805