Der Gerichtshof Hat Immer Recht

Alexander Schatz*

Every single Supreme Court case in the history of the United States has been correctly decided.

That is a bold claim, I know. But please bear with me; I intend to defend it vigorously.

I hope to convince you that it is definitionally impossible for a Supreme Court case to be wrongly decided. I am keenly aware that this is a bold claim, but it is not beyond the pale of the concept of judicial supremacy.¹

In making this argument, I am not advocating for the Supreme Court to use its unchecked power. Au contraire, this blog post is a warning—a warning about the fundamental importance of a democratic culture to the continued functioning of a democracy. A written constitution, regardless of how well it is crafted, is totally ineffectual if there is no motivation to make a good-faith effort to adhere to it.

In contemporary times, the implications of an unchecked Supreme Court are relatively banal. One might strongly disagree with, for example, striking down parts of the Voting Rights Act,²  but the result of that, at the end of the day, is far from existential.

What is the purpose of this blog post, then? Is it simply a self-indulgent mental exercise? Far from it. Though the United States may right now be infertile ground for political turmoil, that will likely not always be the case. Anything that introduces a high level of economic uncertainty to the average American—such as a large-scale war, a crippling pandemic, or a natural disaster—has the potential to cascade into unrest, and even mere complacency is dangerous.

There is an important point made by Justice Marshall in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”³ There are certainly compelling and thoughtful arguments to be made that all three branches have a role to play in interpreting the Constitution,⁴ but to that I say: Okay, let’s roleplay what that would look like. You are the president, and the Supreme Court has just struck down the statute criminalizing machine guns on Second Amendment grounds.⁵ It’s a 9–0 decision, so there’s little chance the issue will be revisited anytime soon. You think this is an incorrect interpretation of the Second Amendment and thus decide to ignore it.

The FBI finds someone with a machine gun and arrests him. The U.S. attorney indicts him. His defense attorney files a motion to dismiss in the district court, arguing that the recent Supreme Court decision is controlling. The district judge grants the motion.

Undeterred, you appeal the dismissal. The circuit court upholds the dismissal, again based on the recent Supreme Court decision. You file a petition for a writ of certiorari, which is denied because the Supreme Court has nothing new to say about this issue. The dismissal stands. The man with the machine gun goes free.

Long story short, the president is unable to enforce laws without the cooperation of the judicial branch, which is headed by the Supreme Court. Any law enforcement that does not involve the cooperation of the judicial branch—or, in other words, sidesteps any Supreme Court ruling on the issue at hand—would signal the end of the American constitutional order. See the righteous outrage any time the words “extrajudicial executions” hit the headlines.⁶

There is one elephant in the room: when the Supreme Court overrules itself. Admittedly, there is some tension here. How could the Supreme Court be always definitionally correct when it explicitly says things like “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”?⁷

There is really no satisfying answer to this conundrum. On one hand, the Supreme Court is—functionally, at least—always right. On the other hand, it itself is obviously able to say that it was wrong in the past. The conclusion, I think, is that the Supreme Court is functionally always right, and we can leave room to say that it can be wrong in other ways—morally, for example. This should be obvious—while you can’t functionally appeal to God to argue that Dred Scott was wrong,⁸ you can do so morally.

The ability of the Supreme Court to overrule itself also hints at another open secret: Stare decisis is only a convention—a convention that can be easily discarded whenever it is convenient. Just in the past few years, Roe v. Wade and Chevron, two longstanding precedents, have been overturned by the Supreme Court.⁹ Since stare decisis “is not an inexorable command,”¹⁰ there is truly nothing stopping the Supreme Court ruling any way it wants on any issue.

Everything above taken into consideration, it is the unavoidable conclusion that the Supreme Court cannot err in its judgments because there is nobody in the American constitutional order that is functionally able to say that the court was wrong. The president cannot evade its judgments, and even congressional impeachment and removal of every single justice cannot touch the ruling itself—it can only make it more likely that the ruling will be overturned in the future.

Now, onto why all this matters: The United States has been so stable for so long that real political turmoil has long passed out of living memory.¹¹ As a result, it is hard to imagine anything other than the state functioning well and the Constitution being adhered to. Regardless of whether or not the president agrees with a Supreme Court decision, he will abide by it.

There is a real danger of this incredible stability leading to complacency. It is easy for a comfortable society to slip into forgetting why a democratic culture—the general belief in society that democracy matters and is worth preserving¹²—is important since it has never experienced the alternative. A democratic culture is a precious thing, and its loss in the United States would lead to the Constitution becoming little more than words on paper.

Words on paper have no power by themselves. In our case, preventing the Constitution from becoming mere words on paper requires that all three branches interpret it in good faith—their interpretations must be honest. The president must abide by court decisions. Congress must pass laws its members believe are constitutional. And, most importantly, since it has the final word, the Supreme Court must rule in accordance with how its justices read the Constitution, not with how they wish to read it. If these 546 people do so,¹³ the country will continue to see political stability. If they don’t, God help us.

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* Alexander Schatz, Juris Doctor Candidate, Class of 2025, University of St. Thomas School of Law. Senior Editor, University of St. Thomas Law Journal. The title of this post is based on the communist “Lied der Partei,” which contains the line “Die Partei, die Partei, die hat immer recht” (The party, the party, it is always right”). Dr. Ludwig, Lied der Partei [GDR song][+English translation], YouTube (June 20, 2020), https://youtu.be/TRGIQAUHqhM [https://perma.cc/XW82-VSZQ]. In this case, the court is always right.

1. Judicial supremacy is the doctrine that “the judicial branch has final, binding power to interpret federal law.” Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 99 (1993). ↩︎
2. Shelby Cnty. v. Holder, 570 U.S. 529, 557 (2013). ↩︎
3. Marbury v. Madison, 5 U.S. 137, 177 (1803). ↩︎
4. E.g., Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 141 (2015). ↩︎
5. 18 U.S.C. § 922(o)(1); U.S. Const. amend. II. ↩︎
6. See, e.g., Philippines: UN Must Intensify Pressure to End Killings as Impunity Reigns, Amnesty Int’l (Sep. 25, 2020), https://www.amnesty.org/en/latest/press-release/2020/09/philippines-un-pressure-end-killings/ [https://perma.cc/BVG3-FER9]. ↩︎
7. Trump v. Hawaii, 585 U.S. 667, 710 (2018) (quoting Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting)). ↩︎
8. Regardless of your feelings toward God, you cannot argue with the fact that the process for petitioning him for a writ of certiorari is unclear. See Dred Scott v. Sandford, 60 U.S. 393 (1856). ↩︎
9. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022) (overturning Roe v. Wade, 410 U.S. 113 (1973)); Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (overturning Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). ↩︎
10. Payne v. Tennessee, 501 U.S. 808, 828 (1991). ↩︎
11. I consider the last instance of “real political turmoil” to be the Civil War. ↩︎
12. This is my own definition; there are others, but this is what I mean by it. A different one is “the desire and ability of individuals in a population to participate actively, individually and together, to the government of public affairs affecting them.” Democratic Culture, Fund for Democratic Culture, https://fundfordemocraticculture.org/democratic-culture/ [https://perma.cc/KK5Z-NF8H]. ↩︎
13. One president, one vice president, 435 representatives, one hundred senators, and nine Supreme Court justices. ↩︎