I wrote yesterday that the Supreme Court's Arizona redistricting-by-commission decision made good law bad. A court majority did this by redefining the word "Legislature" in the Constitution's "Elections Clause" to include a legislative process designed to bypass the legislature. This new and expanded understanding of "Legislature" may be better policy, considered purely as policy. But as law, the "Elections Clause" is worse than it was before, for it has lost some of the determinacy it previously had, which is one of the reasons it was included as written law to begin with.
Decisions like the Supreme Court's "Legislature"-redefinition decision raise the question of how to respond when bad things happen to good law.
One appropriate response is condemnation. Done persuasively, condemnation of bad decisions may decrease the likelihood of similarly bad decisions. And conscientious government officials should be open to fair legal criticism. Indeed, it is their duty to heed such criticism.
What about accepting the erroneous interpretation as law? Should we?
This raises a number of difficult questions for political prudence. The answers to some of those questions can be informed by correct legal analysis, although that will only take us so far. But here's a start.
The Supreme Court cannot change the Constitution. Like all other government officials, the Justices of the Supreme Court are under the law; they are its servants. The Constitution is their master; they are not our masters.
The Supreme Court can nevertheless change the law that judges of inferior courts are obligated to apply. The holdings of an opinion for the Court bind inferior judicial officials as a matter of vertical stare decisis. Even erroneous decisions create "new law" of a peculiar sort. This "case law" is not equivalent to the Constitution itself, even for judges of inferior courts. But it is law of a certain sort.
Like other courts, the Supreme Court can also render judgments and make legally binding orders. These judgments and orders also make law of a certain sort, in accordance with the law of judgments and the law of remedies. Included in the law of judgments, for example, are various rules of preclusion that prevent (or "preclude") the relitigation of finally decided matters.
All of this "new law" created by an erroneous Supreme Court decision is final in some respects, but not final in others. Precedents can be distinguished, narrowed, and even overturned; judgments can be re-opened; orders can be amended. There's law about how all that happens as well (though some of that law, such as that guiding judicial practice regarding precedents, is rather fuzzy).
Knowing the ways in which an erroneous Supreme Court decision is and is not law in various ways can help inform whether and how one accepts that decision as law.
Suppose you really like redistricting by commission but you think the Supreme Court's interpretation of "Legislature" to authorize it was legally wrong. Should you vote for an initiative that takes advantage of that erroneous interpretation to authorize redistricting by commission? That depends on much more than just the legal analysis provided thus far. You will be undermining constitutional self-government at least to some degree, but perhaps not much. And the resulting process will be good law of a certain sort. There is a lot of room for political judgment and discretion here.
What if you have taken an oath to uphold the Constitution (as I did, for example, when I was sworn into the bar)? Would voting for that initiative violate your oath? If so, then you shouldn't do it. But voting for an initiative that helps to solidify in practice an erroneous constitutional interpretation does not necessarily violate a voter's oath to the Constitution. We do not think that lawyers violate their oath to the Constitution when they help clients order their affairs in the wake an erroneous judgment in a constitutional case. After all, the judgment is law of a certain sort for that client. Why think differently about voters?
To say that it is permissible in certain circumstances to act on erroneous judicial interpretations of the Constitution is not to say that it is obligatory. Far from it. Some government officials have an obligation to treat these erroneous interpretations as law of a certain sort, as we have seen. But they also have an obligation to the Constitution itself. And they should not make that good law worse just because the Supreme Court has. Judges on inferior courts can distinguish and criticize; other officials (and voters) can adopt an opposite interpretation as a political rule. And in some circumstances--maybe even most--they and we should.
The law shapes and guides here, but does not fully determine what one ought to do when bad things happen to good law.
