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.