Freeing State Courts from SCOTUS
- Author(s):
- Nelson Lund
- Posted:
- 1-2025
- Legal Studies #:
- 25-02
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
Congress is authorized to establish what the Constitution calls "inferior courts." Those courts are required to follow the Supreme Court's interpretations of federal law, at least when the interpretations are issued as holdings rather than dicta. It is almost always taken for granted that state courts have the same duty to accept the Supreme Court's interpretive decisions. This short essay argues that this assumption is misplaced. Under the Supremacy Clause of Article VI, state courts are bound by the supreme law of the land, which includes the Constitution, federal laws made in pursuance of the Constitution, and treaties. The Constitution nowhere characterizes federal judicial opinions as the supreme law of the land and it nowhere characterizes state judicial tribunals as "inferior courts."
Like everyone else, judges are certainly bound by Supreme Court judgments, even seriously mistaken judgments like the one in Dred Scott. But the Supremacy Clause does not say or imply that state judges are bound by that Court's interpretations of federal law. The Constitution leaves them free, and perhaps even obliged, to disregard Supreme Court precedent when it conflicts with what is actually the supreme law of the land.
State court judges can and should exercise their freedom to follow what they believe is the supreme law of the land. This form of judicial independence could have a number of healthy effects on our dual legal systems. And if it had unhealthy effects, Congress could provide a remedy through the writ of habeas corpus and through its control over grants of jurisdiction to the state courts.