an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Reciprocal Legitimation in Response to President Trump
In Reciprocal Legitimation in the Federal Courts System, I offer an account of the relationship that the Supreme Court may forge with most lower federal courts in response to perceived threats to the public legitimacy of the federal judiciary. I suggest that a three-stage process of reciprocal legitimation helps explain the path from Brown v. Board of Education to the subsequent per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges.
At stage one, the Supreme Court intervenes to a limited extent in a heated cultural or political conflict by deciding less than it is entitled to decide. At stage two, most lower federal courts expand the scope of the Court's initial ruling and invoke that ruling as authority for doing so. In the final stage, the Court invokes those lower court decisions as authority for validating the expansion.
At the initial stage, the Supreme Court may or may not intend for the lower courts to expand the scope of its initial ruling. The difference between intended and unintended reciprocal legitimation is relevant to a normative analysis of the conduct of a Court that is prepared to sacrifice some judicial candor in the service of preserving its public legitimacy.
President Trump's recent attacks on the legitimacy of the federal courts raises the questions whether it is likely and desirable that intended reciprocal legitimation--or something like it--will emerge in the years ahead. The federal courts are asserting their authority now, but they will inevitably become more vulnerable in the event of a significant terrorist attack, especially because the President has given specific indications that he will blame them (as well as the news media) if such an attack occurs. And as Curt Bradley and I have written over at Lawfare, the President may be trying to create a narrative of judicial usurpation that he can use after an attack to rally a frightened public behind his disregard of judicial authority.
In a new Coda to the article, I suggest that strength in numbers is one way in which federal judges likely will and should rebut the President's repeated assertions that their decisions are political. By calling their legitimacy into question, the President may succeed only in generating more judicial unity than would otherwise be possible.