Judicial rulings change our law through addition, not subtraction

Randy Barnett continues his debate with Ed Whelan on judicial supremacy (about which I have previously commented here and here). Barnett poses some questions to clarify their joint inquiry and presents his answers to advance it.

Here are some of my own answers to Barnett's questions (which I think are similar to answers that Paulsen and Whelan would give as well): 

"What is the positive law of the land after a Supreme Court holding that a statute is unconstitutional?" 

We can call my first claim PL-Plus: The positive law of the land after a Supreme Court ruling is the same as it was before the Supreme Court ruling, plus whatever it is that the Court's ruling adds to the mass of authoritative legal materials that a faithful follower of the law must consider in determining what the law is.

Now four more specific claims I think are legally correct (with U designating Unconstitutional and C designating Constitutional, the first letter designating whether a law really is constitutional or unconstitutional and the second letter designating what the Supreme Court says about whether a law is constitutional or unconstitutional):

U + U = U ("UUU"): If a law is unconstitutional before an authoritative Supreme Court holding of unconstitutionality, it remains unconstitutional after such a ruling.

U + C = U ("UCU"): If a law is unconstitutional before an authoritative Supreme Court holding of constitutionality, it nevertheless remains unconstitutional after such a ruling. 

C + C = C ("CCC"): If a law is constitutional before an authoritative Supreme Court holding of constitutionality, it remains constitutional after such a ruling. 

C + U = C ("CUC"): If a law is constitutional before an authoritative Supreme Court holding of unconstitutionality, it nevertheless remains constitutional after such a ruling.

UUU and CCC are uncontroversial (at least in their bottom line) and don't require much explanation. But UCU and CUC are controversial and do require an explanation, so we'll start there. What does our positive law provide when there is divergence between what the law is and what the Supreme Court says the law is?

One approach (the approach that people usually mean by "judicial supremacy") is simply to deny that there can be more than one authoritative legal understanding about the constitutionality of a law at any given moment in time: If the Supreme Court says an unconstitutional law is constitutional, the law becomes constitutional and thenceforth is unless and until the Supreme Court authoritatively changes its mind; and if the Supreme Court says that a constitutional law is unconstitutional, the law then becomes unconstitutional and thenceforth is unless and until the Supreme Court authoritatively changes its mind. On this view, there is no such thing as a law that remains constitutional even though the Supreme Court has authoritatively held it unconstitutional. Nor is there any such thing as a law that remains unconstitutional even though the Supreme Court has authoritatively held it to be constitutional.

Although the Supreme Court has sometimes said that this is how our law works, it is not. And we know it's not because it's perfectly legitimate for the Court and others to think that the Supreme Court has made a legally erroneous decision in ruling on the constitutionality of a law. It can be legally correct in our system to say that "the law is really X even though the Supreme Court has said Y." (Cf. Stephen Sachs, The Constitution in Exile as a Problem for Legal Theory at 2267, quoting Caleb Nelson, A Critical Guide to Erie at 937.)  

Because Barnett denies judicial supremacy, but the way in which people use that term can vary, a clarifying question for him is whether he accepts that at any given moment in time, there can be a divergence between (R) whether a statute really is unconstitutional and (SC) what the Supreme Court has said about whether that statute is unconstitutional.

Barnett's answer to this question is unclear (at least from his latest post), as can be seen in the ambiguity in his second question:

"[U]nder our Constitution, is a statute that has been properly adjudicated to be unconstitutional still the positive law of the United States?"

My answer to this is question is that it depends on what the question means by "properly adjudicated to be unconstitutional."

If this means that the Supreme Court ruled correctly on the merits, then the "still" in the question does not make sense because an unconstitutional statute never was the positive law of the United States.

So "properly adjudicated to be unconstitutional" probably means something like "authoritatively held to be unconstitutional in a case within the Court's jurisdiction, with all the finality and formality that a Supreme Court merits ruling on a case within the Court's jurisdiction can have for all other actors in our legal system." 

Barnett's answer to this question appears to deny what I have called "CUC" -- the claim that a constitutional law remains constitutional even after the Supreme Court has authoritatively held it to be unconstitutional. But his position is unclear (at least from the post) because his real claim appears to be about whether a citizen is legally obligated to obey such a law, and his apparent answer is no. (I hedge by using "appears" and "apparent" because Barnett's claim comes as an answer to the ambiguous question about a law that has been "properly adjudicated to be unconstitutional." He writes: "Once properly adjudicated to be unconstitutional, a statute is no longer the positive law of the United States and citizens need not obey it.") 

Does Barnett deny CUC? If so, that may be because he neglects the possibility (which is in fact the case under our law) that it can be perfectly legal for a citizen to decline to follow a perfectly constitutional law that has authoritatively been held to be unconstitutional. Indeed, this is what a citizen often should do.

This brings us back to PL-Plus: "The positive law of the land after a Supreme Court ruling is the same as it was before the Supreme Court ruling, plus whatever it is that the Court's ruling adds to the mass of authoritative legal materials that a faithful follower of the law must consider in determining what the law is." 

We can now address a big question that PL-Plus raises in the context of Barnett's questions: "What is it that a Supreme Court ruling of unconstitutionality add to the mass of authoritative legal materials that a faithful follower of the law must consider in determining what the law is?" The answer turns on the particular kind of authoritative legal material that a Supreme Court decision is. It is a judicial decision by the highest court that can speak on the meaning of federal law. As such, the decision is law of a particular sort for all other courts beneath the Supreme Court (which under our Constitution includes both lower federal courts and state courts insofar as they are deciding questions of federal law). By virtue of vertical stare decisis, a Supreme Court decision adds to the law binding direction for other judicial actors. A final judicial judgment also adds to our law binding direction for other courts through the law of judgments and the operation of preclusion doctrine (at least insofar as the judgment was one within the court's authority to enter). And a judicial remedy such as an injunction adds to the law specific directions for particular actors in our legal system (at least insofar as those directions are within the legal authority of the court to order). Through any one of these additions to the law, or some combination of them, the legal obligations of citizens and others can be altered. 

* * *

There is more that can be said, but what has been said thus far is enough for now. Under our law, Supreme Court rulings on constitutionality do not bring statutes in and out of existence, but they can radically affect both their enforceability and the obligations of non-judicial actors. It is a mistake, though, to think that these changes come about by means of judicial subtraction of a law from the law.