Article by Burt Neuborne
In a way, it's too bad that the Attorney General apparently bowed to political pressure and recanted his provocative challenge to the self-executing quality of Supreme Court precedent. His speech before the Tulane University Citizens' Forum raises issues that are too important to be swept aside by a strategic retreat. The Attorney General initially asserted that a Supreme Court decision interpreting the Constitution is formally binding on the executive branch and, presumably, on the states only with respect to the named parties, leaving officials free theoretically to ignore the Supreme Court's pronouncement in dealing with the remainder of the public—at least until the officials are once again taken to court. In a subsequent article in the Washington Post, the Attorney General significantly softened his initial position, claiming only to have asserted the right to criticize the Supreme Court, not the right to disobey it.
Since the Attorney General's initial challenge to the self-executing quality of judicial precedent was premised on a recurring misunderstanding of the relationship between the executive and the judical branches, a misunderstanding which continues to pose practical problems in the administration of critical government programs, and since I suspect that the Washington Post apologia is merely a strategic retreat, I propose to take the Attorney General's challenge more seriously than he claims to take it himself. I shall argue that once the Supreme Court, or a circuit court for that matter, enunciates a settled rule of law, constitutional or otherwise, in the context of resolving an article III case or controversy, our system of government obliges executive officials to comply with the law as judicially declared. The executive branch is, of course, free to disagree with the judiciary's resolution of a legal question and to seek to persuade the Court, the Congress, or the people to overturn it. However, so long as the judicial precedent remains viable, the executive's duty is to conform its conduct to the Supreme Court's precedent, not merely as a matter of respect, prudence, expedience, or realpolitik, but as a matter of formal legal obligation.
About the Author
Burt Neuborne. Professor of Law, New York University School of Law. Professor Neuborne served as National Legal Director of the American Civil Liberties Union from 1982-1986. He is currently an attorney for the plaintiff-class in Stieberger v. Bowen, discussed infra at note 19 and accompanying text, which challenges the refusal of the Social Security Administration to be bound by settled intracircuit court precedent.
Citation
61 Tul. L. Rev. 991 (1987)