In his recent forum essay on nullification, Mark Pulliam distinguished between true nullification laws—those in which a state claims that it can refuse to obey federal laws that the state deems to be contrary to the Constitution—and laws that are merely statements of disagreement or vows of non-cooperation. This is an important distinction because the states are under no constitutional obligation to endorse federal laws or to cooperate with the federal government in enforcing them. The Supreme Court itself has rejected attempts to impose an obligation on states to administer federal regulations, and the only serious question is how far the federal government can go in pressuring states to do so.

　　Immigration sanctuaries, where state or local governments refuse to assist with the enforcement of federal immigration laws, have received considerable publicity. Missouri’s “Second Amendment Preservation Act” offers a variation in which a state law declares that certain gun regulations that have been or could be adopted by the federal government violate the US Constitution. These laws “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.” The statute vaguely requires state officials to protect the rights of law-abiding citizens, and specifically forbids them to enforce these laws.

　　The US Court of Appeals for the Eighth Circuit recently held that Missouri’s statute is unconstitutional because it violates the Supremacy Clause, which declares:

　　This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

　　The court admitted that Missouri is constitutionally free to withhold its assistance from federal law enforcement, but condemned the statute for asserting that federal gun laws are “invalid to this State.”

　　This judicial condemnation is itself unconstitutional because Missouri’s statute does not require or authorize any state officials to violate any federal law. It tells state officials that they must not enforce certain federal laws, which would help to protect Missouri’s citizens from infringements on their rights, but it does not tell them to actively resist any federal law. It certainly does not tell them to arrest federal law enforcement agents, or to aid citizens in escaping from custody after they’ve been arrested for a federal violation. If a Missouri official ever did such a thing under color of the statute, a federal court could enjoin the practice immediately, and the state official would risk a federal criminal prosecution. But the Eighth Circuit doesn’t pretend that such violations of federal law have ever occurred, or that they are likely to occur.

　　Shockingly, the Eighth Circuit forbade Missouri to exercise its acknowledged right to refuse cooperation with the federal government because the state gave a reason for that refusal that the federal judges considered impudent. Missouri can respond to this petty and unconstitutional act of intolerance by enacting a new statute that accomplishes the same legitimate effects using slightly different words. So maybe the case is not worth getting too excited about.

　　But perhaps the Missouri legislature’s courageous disrespect for the federal government’s interpretation of the Second Amendment should inspire us to take a careful look at the Supremacy Clause. When we do, we can see reasons for thinking that state courts in general are overly respectful toward interpretations of the federal Constitution adopted by the Supreme Court.

　　It is almost universally agreed that the federal courts established by Congress—what the Constitution calls “inferior Courts”—must accept the Supreme Court’s interpretation of federal law. That makes sense because the Constitution establishes a hierarchical judicial establishment, and it wouldn’t be much of a hierarchy if the Supreme Court were confined to making suggestions about how its subordinates should decide cases. Reasonable people can disagree about the extent to which inferior courts are bound by obiter dicta in Supreme Court opinions, i.e. remarks that are unnecessary to the reasoning that resolves the case. But that doesn’t mean that inferior courts may disregard the Supreme Court’s interpretations of federal law.

　　Virtually everyone also agrees that state courts are bound by the Supreme Court’s interpretations of the Constitution and federal statutes. I think this is a mistake, and one that has bad effects on both the federal and state judicial systems.

　　The Constitution permits the state courts to become less deferential to the Supreme Court, even if it does not absolutely command them to do so.

　　The Supremacy Clause says that state court judges are required to follow three kinds of federal law, even when they conflict with state law: The Constitution itself, federal laws “made in Pursuance thereof,” and treaties. The new Constitution thereby deprived state law of its previous status as supreme law, and required state judges to reorient their approach to adjudication. But the omission of federal judicial opinions from the list creates a presumption that they are not a form of supreme law. This common-sense negative inference has been formalized in a venerable canon of interpretation that has a Latin name: expressio unius est exclusio alterius.

　　The Constitution nowhere characterizes the state courts as “inferior” to any federal court, although Article III does give the Supreme Court appellate jurisdiction over certain cases arising in state courts. When the Court exercises that jurisdiction, a state court must respect the judgment in that particular case. But that does not imply that state courts are otherwise bound by Supreme Court opinions. If anything, the text of the Supremacy Clause suggests that state courts are forbidden to follow Supreme Court opinions that conflict with one of the three kinds of supreme law. Since state courts are required to follow the supreme law of the land when it conflicts with the constitution or laws of a state, why wouldn’t they also be required to follow the supreme law when it conflicts with a federal judicial opinion?

　　It might be objected that this would lead to a harmful lack of uniformity around the country, or that rogue courts might adopt implausible or perverse interpretations of federal law. But if that were to happen, Congress could simply provide for exclusive jurisdiction in federal courts over matters in which state court behavior was having bad effects. In state criminal prosecutions, where that jurisdictional solution is unavailable, the writ of habeas corpus already offers protection for federal rights. With the threat of this kind of federal preemption hanging over them, state courts would not have much incentive for irresponsible behavior.

　　The Constitution at least permits the state courts to become less deferential to the Supreme Court, even if it does not absolutely command them to do so. And less deference could produce some very good effects. A notorious pathology among Supreme Court justices arises from their awareness that everyone who counts will almost always treat their pronouncements as if they were the law, and indeed the supreme law of the land. This habitual obeisance produces arrogance and intellectual laziness, both of which are amply displayed in Supreme Court opinions written by Justices of all jurisprudential and ideological persuasions. If state courts, and especially state supreme courts, considered themselves obliged, or at least authorized, to disregard erroneous Supreme Court precedents, the justices would acquire a new incentive to provide persuasive and honest explanations for their decisions. Any informed observer of the Court’s work should recognize that such incentives are needed.

　　The Supreme Court might also become more willing to correct its own past mistakes. The justices are understandably inclined to regard criticism from politicians as irrelevant noise or as threats that it would be dishonorable to heed. As for academic criticism, why would most of the justices even take the trouble to know about it except when a law clerk finds something that can be cited to support a conclusion already arrived at? State courts, however, are not just kibitzers without the responsibility for actually deciding cases. Sustained criticism from these judges might get more respect from the justices, especially if accompanied by reasoned refusals to follow unpersuasive Supreme Court doctrines.

　　A willingness to avoid unthinking deference to Supreme Court opinions might also have some salutary effects on the state court judges themselves. As the power and prestige of the federal government have increased over time, so have the prestige and power of the state courts been diminished. Not surprisingly, state courts have tended to become excessively deferential to the Supreme Court. Justice William Brennan called attention to this problem many years ago when he urged state judges to stop indulging a presumption that state constitutional provisions should be given the same interpretation that the Supreme Court has given to parallel provisions of the US Constitution. He was right, and state judges should try to act like jurists who deserve to be leaders rather than followers. Such competition could lead to better work from all the courts involved. And if it did not, Congress has the power to prevent serious dislocations.

　　It is conceivable that Missouri’s Second Amendment Preservation Act could provide an occasion for that state’s courts to be as courageous as its legislature. The statute authorizes private citizens to file a lawsuit against state officials who enforce what the state believes are unconstitutional federal gun regulations. If such a suit were brought, the Missouri courts could permit the case to go forward after explaining why they believe that the Eighth Circuit’s decision was clearly erroneous. If that were to happen, the US Supreme Court could review the Missouri decision on appeal. That Court might affirm, and even if it reversed, that would be better than the usual practice of passively allowing an unconstitutional decision by an inferior court to remain in effect through inertia.

　　This essay builds on a 2012 article by Lund in the George Mason Law Review, Stare Decisis and Originalism: Judicial Disengagement from the Supreme Court’s Errors.