One of the most pernicious falsehoods that has arisen in the public’s understanding of constitutional jurisprudence is that Supreme Court opinions are somehow sacrosanct and inviolable, and must never be challenged but only obeyed and followed by lower courts.
But not even the Supreme Court believes in the inviolability of its own precedents. The justices opined in 1986 that homosexual behavior could be criminalized. In 2003, they opined that it couldn’t. Now either the Court was right in 1986 (it was) or it was right in 2003 (it wasn’t) but it couldn’t have been right both times. In other words, the Court itself, every time it reverses itself, admits that it is capable of errors that require judicial correction. One count I have seen estimates the Court has reversed itself more than 200 times.
The Court did a similar thing with regard to same sex-marriage. In 2013, the Court opined that same-sex marriage was a state matter. In 2015, the Court opined that it was not. It thus reversed itself in a dizzyingly short span of two years.
So clearly, Supreme Court opinions do not establish binding precedent that every court and every judge must follow. If the Court does not consider itself bound by its own “sacred” precedent, why should anybody else? The Court itself does not even call its decisions “rulings.” The word they themselves use is “opinion.” They do not issue “rulings,” they issue “opinions.”
And their rulings cannot possibly represent the “law of the land,” because the Court has no legislative authority whatsoever. “All legislative Powers,” according to Article I, Section 1, “shall be vested in a Congress of the United States...” Well, “all” means “all," leaving precisely zero law-making to the Supreme Court.
No federal judge has ever taken an oath to uphold the opinions of the Supreme Court. Rather, the solemn and sacred oath federal judges take commits them to uphold the Constitution, not Supreme Court rulings. If there is a conflict between the Constitution and the Supreme Court on an issue that is before a lower court, that court is honor-bound, conscience-bound, and duty-bound to follow the Constitution rather than the Supreme Court. Not to do so is to violate their oath of office.
We have seen a totally out-of-control federal judiciary since President Trump was inaugurated. Lower court judges have been routinely ignoring the Constitution, the law, and their own jurisdictional limits to issue sweeping, nationwide “injunctions” against travel bans and immigration restrictions. President Trump has been a victim of 22 of these nationwide injunctions, a record in American history.
But as Jeff Sessions points out in his brilliant essay in National Review, courts once understood that their rulings applied only to the parties in front of them. Sessions writes (emphasis mine),
For example, in one 1897 case, the Supreme Court found a law unconstitutional and even recognized that many others besides the plaintiff might be entitled to relief. But the Court issued an injunction that only prevented application of the law to the plaintiff. During the New Deal controversies, courts concluded that one new tax was unconstitutional more than 1,600 times. They issued more than 1,600 injunctions — each applying only to the plaintiff in the case.
The point here is that even when a Court found for the plaintiff in front of them, on the grounds that the law in question was unconstitutional, the relief they granted only applied to that one plaintiff. Others might be entitled to relief, they pointed out, but if they wanted it, they were going to have to go to court to get it.
This was exactly Judge Roy Moore’s point with regard to the application of Obergefell to Alabama. The Court’s ruling in Obergefell, Moore said, applied only to the 16 plaintiffs who were in front of the Supreme Court that day. He readily accepted that they could go get same-sex wedding licenses. But since Alabama wasn’t in court that day, and had no opportunity to make its case, the ruling didn’t apply to the citizens and the courts in Alabama. To apply it to them essentially meant the Court was punishing them in absentia and without due process.
The only relief courts can grant is to the people who actually appear before them. A court may find one man guilty of burglary, based on the law, but that doesn’t implicate any other burglar. If the next burglar is going to be sent to jail, he’s going to have to appear in court, be tried, and found guilty.
And if we got back to this most logical point of view - that court rulings at any level apply only to the parties who are actually in court - we not only will be closer to true justice but we just might be able to break the stranglehold of judicial activism at the same time.