At Dorf on Law, Eric Segall: Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law. From the introduction:
I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.
The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.
Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.
And in response:
At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).
My tentative view is that court decisions (as to constitutions and statutes) are authoritative statements of what the law is, although they are not law in themselves. But I'm not sure there are practical implications of taking a different view for most people. I do think that Congress and the President are entitled to hold different views from the courts of what the law is, so long as they do not act contrary to court orders. (So for example the President can veto an Act on the ground that it is unconstitutional even if the Supreme Court has said that a law of that type is not unconstitutional). But I'm not clear on why the distinction matters in other contexts.
Posted at 6:30 AM