Balkinization: Reciprocal Legitimation in the Federal Courts System

Reciprocal Legitimation in the Federal Courts System

Neil Siegel

Focusing only on the U.S. Supreme Court and only on the merits of historic cases can help one to perceive certain important phenomena, but it disables one from seeing others. In a new paper, I put aside whether the Court was correct to conclude that same-sex marriage is constitutionally protected and instead examine the interaction between the Supreme Court and the “lower” federal courts beginning in United States v. Windsor and culminating in Obergefell v. Hodges. (To understand the scare quotes around the word “lower,” please read on.)

I argue that, in adjudicating constitutional challenges to state prohibitions on same-sex marriage, the Court and the overwhelming majority of federal district and circuit courts participated in a dialectical process that I call “reciprocal legitimation.” Such a process, I further argue, also captures the mutual support that the Court and other federal courts provided one another in past controversies involving racial segregation and reapportionment, and contrasts sharply with how other federal courts have generally greeted the Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. Among other implications, the paper suggests that constitutional change is more judicially driven, and the federal court system is less hierarchical, than prominent theorists have recognized.

Here is the abstract:

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other federal courts is best viewed as neither top-down nor bottom-up, but side-by-side. When the Court intervenes in fierce political conflicts, it may proceed in stages, interacting with other federal courts in a way that is aimed at enhancing its public legitimacy. First, the Court renders a decision that is interpreted as encouraging, but not requiring, other federal courts to expand the scope of its initial ruling. Then, most federal courts do expand the scope of the ruling, relying upon the Court’s initial decision as authority for doing so. Finally, the Court responds by invoking those district and circuit court decisions as authority for its own more definitive resolution. That dialectical process, which this Article calls “reciprocal legitimation,” was present along the path from Brown v. Board of Education to Loving v. Virginia, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges—as partially captured by Appendix A to the Court’s opinion in Obergefell and the opinion’s several references to it. This Article identifies the phenomenon of reciprocal legitimation, explains that it may initially be intentional or unintentional, and examines its implications for theories of constitutional change and scholarship in federal courts and judicial politics. Although the Article’s approach is mainly descriptive and analytical, it also normatively assesses reciprocal legitimation given the sacrifice of judicial candor that may accompany it.

Posted 6:35 PM by Neil Siegel [link]