Article by Paul L. Colby
In the summer of 1986, Republican presidential aspirant and television evangelist Marion G. (“Pat”') Robertson made the provocative observation that Supreme Court rulings are not the supreme law of the United States. Several months later at Tulane University, Attorney General Edwin Meese III reiterated the thought. Both men's comments were roundly denounced. But as the reins of the Supreme Court pass to jurists who perhaps cherish rights such as the right to bear arms or the right to life of an unborn fetus, the wisdom of their view may well be reconsidered. The view espoused by Meese and Robertson has solid historical antecedents. Its logic not only applies to constitutional interpretation, but also to other areas of judicial decisionmaking. In a republic, judges are theoretically not the lawgivers.
This Article addresses the right and power of nonparties to refuse to adhere to interpretations of law reflected in judicial opinions, that is, to engage in so-called nonacquiescence. Implicated are modern aspects of a claim with ancient origins—the right of institutions other than courts to interpret the law—as well as the right of lower court judges to vary their interpretations from those of their appellate brethren. There is much at stake, for as Bishop Hoadly said over two centuries ago: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.”'
One's view of the legitimacy of not acquiescing in judicial opinions largely is determined by which of two models of legal reasoning one favors: induction from judicial opinions or deduction from enacted legislation. The inductive method owes much of its current popularity to the Legal Realist School. The deductive method enjoyed its heyday in the era of eighteenth century rationalism.
Sections I and II of this Article discuss these two competing methods of legal reasoning and what status each accords the judicial opinion, a determination crucial to the assessment of the legitimacy of nonacquiescence. Section III begins by considering the limits to a court's power imposed by its adjudicatory context. It then addresses the two avenues of nonacquiescence charted by Abraham Lincoln—one for nonjudges, the other for judges—in light of these limits to judicial power. Lastly, section III assesses the foreclosure of these two forms of nonacquiescence by a number of twentieth century judicial doctrines. This foreclosure of nonacquiescence has profound implications for defining the limits to the powers of an unelected, unrepresentative judiciary.
About the Author
Paul L. Colby. Assistant United States Attorney for the District of Columbia. B.A. 1977, Tulane University; J.D. 1980, Columbia Law School. The views expressed herein do not necessarily reflect those of the United States Department of Justice.
Citation
61 Tul. L. Rev. 1041 (1987)