Wednesday, October 08, 2014

Should Anti-SSM Appeals Court Judges Rule For Same-Sex Marriage Based On The Cert Denials?

by Michael Dorf

Imagine a conservative judge on a panel on one of the courts of appeals in a circuit that has not yet ruled on the constitutionality of state laws forbidding same-sex marriage (SSM). Let's call him Judge Hetero.  Judge Hetero has considered all of the arguments, and his best legal judgment--informed as a judge's legal judgment inevitably is, by his values--is that there is no constitutional right to SSM. Hetero admits that the question is close in light of United States v. Windsor, but he thinks that CJ Roberts was ultimately correct in reading that case as a federalism decision. I know most of my readers do not think this; I don't think this; I think the opposite; but at least a few judges think this, and I'm asking you to assume for reasons that shall become clear that Hetero is one of these judges.

If Hetero's court had been required to rule on the validity of a state SSM ban last week, he would have voted to uphold the ban. Now the question: Assuming Hetero is acting in perfectly good faith, respecting precedent, and not playing any strategic games, but that he remains as conservative on this issue as he was last week, should he change his mind in light of the cert denials? Somewhat surprisingly, the answer is not clear.

Now, in one obvious sense the cert denials make no difference. As the Supreme Court has repeatedly noted, a cert denial sets no precedent. So formally, the cert denials are irrelevant and a judge who was inclined to rule against a right to SSM last week should remain so inclined this week.

But the cert denials may be relevant in a different sense: They enable the appeals court judges to predict with near certainty that the Supreme Court (at least absent any retirements or deaths) would vote to uphold a right to SSM. As a judge on what the Constitution calls an "inferior Court," Hetero might well think that his job is to decide cases in a way that will not result in being reversed by his superiors on the Supreme Court. Indeed, it can be and has been argued that the very obligation of vertical stare decisis is an outgrowth of the ability of a superior court to reverse an inferior one. So why waste everyone's time and money by issuing a decision that Hetero has extremely good reason to believe will be reversed?

The answer depends on how we conceptualize the role of lower court judge. Is it the job of a lower court judge to predict how a higher court will decide an issue? In one context, the Supreme Court has said no. In 1989, in Rodriguez de Quijas v. Shearson/American Express, Justice Kennedy said this for the majority: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Suppose Hetero thinks that the Supreme Court's 1972 order summarily dismissing the appeal in Baker v. Nelson as presenting no substantial federal question was a judgment on the merits that there is no constitutional right to SSM--as briefs for opponents of SSM argue. Then Hetero concludes, based on Rodriguez de Quijas, that he should ignore the signs that the Supreme Court would now rule otherwise, because they merely undermine but do not expressly overrule Baker.

However, nearly all lower courts to have considered the issue find that the Rodriguez de Quijas rule either does not apply to a per curiam appeal dismissal like Baker or that the threshold for superseding such a bare ruling is lower for that kind of case. Suppose Hetero does not think that Baker decides the issue but his best judgment is nonetheless that there is no right to SSM. Now should Hetero sublimate his best judgment to his prediction of how the Supreme Court will decide the case?

I wrote an article in the 1995 UCLA Law Review (downloadable here) in which I argued that lower court judges generally should not conceive of their role as predicting the rulings of higher courts. Predicting how other judges will rule on an issue, I recognized, is accepted in special circumstances, such as when a single Justice must decide whether to grant a stay and acts as a proxy for the full Court or, more controversially in my view, when a federal district court sitting in diversity must resolve an unresolved question of state law. However, I contended that as a general matter, rule-of-law values concerning the impersonality of legal principles obligate lower court judges to apply their own best judgment about how to apply the law--including, of course, all applicable precedents of higher courts.

I continue to think that lower court judges generally should not reject their best judgment about legal principles in favor of a prediction of how a higher court will rule. Accordingly, my answer would be that Judge Hetero should stick to his guns and rule against SSM. If the Supreme Court wants to reverse him based on a different (equally sincere) view of the law, that's its business, not his.

However, I recognize that the issue of whether and when courts should predict rather than use their own best judgment is not settled. Almost exactly simultaneously with my UCLA article, Evan Caminker published an article in the Texas Law Review (no general access version but available via Hein, WestLaw, or Lexis to those with subscriptions) in which he argued for more or less the opposite conclusion. (Caminker and I did not learn of our respective undertakings until we were both nearly finished with our papers, just in time to cross-cite one another but not in time for either of us to address the other's arguments as such in an extended fashion.)

Finally, note that the question whether a lower court judge should predict or simply decide cases according to her own best judgment does not have a clear ideological valence. When the higher court is to the right of the lower court judge, predicting will skew to the right, while best judgment will skew to the left, and vice-versa when the higher court is to the left of the lower court judge. My hypothetical example with SSM falls into the latter category but there is no systematic bias to the choice.


David Ricardo said...

There would seem to be no disagreement with the basic principle that Mr. Dorf elucidates here, but there is disagreement that his argument applies to the situation with respect to SSM. If (1) the Supreme Court has not ruled on the issue, or (2) if the facts before a District or Circuit judge are different from cases where the Supreme Court has ruled then what Mr. Dorf states is correct. The Circuit judge should rule based on his or her interpretation of the law.

But that is not the situation with respect to SSM. With respect to point (1) while the Supreme Court has not ruled on the issue of SSM it has endorsed the rulings of lower Courts that have found SSM to be a Federal issue and to be unconstitutional. So in fact the first argument cited above does not hold. And with respect to point (2) above, the answer is no, the facts are not different across Circuits. The issue is whether or not a state may ban or not recognize SSM, plain and simple. The wording of the laws may be different across states, the impact and effect is the same.

For a Circuit judge to rule that the same law is constitutional in say Louisiana where the Supreme Court has said, either by ruling or denial of cert that the exact same law is unconstitutional in Virginia is to so violate the basic legal structure of the United States, that the Constitution applies equally to all, that such a ruling by a conservative judge cannot be made with any degree of integrity. This of course will not necessarily stop a conservative judge from so ruling.

But the blame here would not be entirely with such a judge. By failing to address the issue, both in Perry and Windsor and by denying cert rather than ruling once and for all on the issue it is the Supreme Court that bears much of the burden for allowing the issue to continue to consume judicial resources and divide the public.

Joe said...

I am not sure what DR is saying the USSC "endorsed" here. The only thing it directly "endorsed" on that front was when deciding DOMA, which involved non-recognition of state marriage, which was found unconstitutional in Windsor.

SSM as a whole was not the issue in Windsor and it is perfectly fine to me for USSC not to decide a major question not necessary to decide it. Not giving federal benefits, e.g., to existing NY SSM is not just the same thing (though the matter is related) to recognition of SSM in Utah. As to Perry, a mixed Court rested on standing grounds. Fairly.

The USSC decides things over a span of years. Windsor was decided in 2013. Some people seemed a tad impatient. As to the immediate question, Prof. Dorf is right on a legal basis. A denial doesn't have legal effect.

The Baker v. Nelson claim however, and the denials realistically helps the cause, is ridiculous. Ginsburg, w/o comment even from Scalia, said so in the Perry orals. A denial for a substantial federal question doesn't tell you much.

I don't think the exact same issue is involved here (sexual orientation discrimination doesn't seem to be cited in Baker, for one thing, since at the time homosexuality was still officially seen as a disease!). But, there clearly is a change in the law that also trumps.

So, it should lose on the merits & given Judge Sutton is supposed to be a smart respectable conservative sort, to provide a real life example, I would find it a bit pathetic if he rested on this dodge. For that is what it is at this point.

Joe said...

ETA: I can't see how the exact same issue can be involved here since ultimately a major issue is recognition of same sex marriages in the current context, including in a state where gays are allowed to adopt and/or have a range of benefits but not marriage. Or, sometimes, constitutional amendments showing animus / blocking "marriage-like" unions.

David Ricardo said...

It is well understood that denial of cert is not a de jure endorsement, but it certainly is a de facto one. At least six Justices de facto opined that the rulings in the Circuits where cert was denied should stand and be the law of the land in those states. So how exactly does an appellate judge in a different Circuit conclude that the same law should not stand in his/her Circuit? Differences among the states such as adoption rights or whether or not the ban was adopted by legislative or popular vote are minor and irrelevant.

And yes we all understand that the Court is delaying rulings in this area and where it cannot delay is issuing narrow rulings because it wants to wait for public opinion to solidify. But that is exactly the opposite of what courts are supposed to do, SSM is either constitutionally required or states can prohibit it, regardless of and independent of public opinion. Insulation of the Supreme Court from public opinion is almost certainly one of the reasons the Constitution provides for lifetime appointments.

Contrast the shrinking violets of the current Court with the Warren Court in Brown where the rule of law and of the Constitution triumphed over public opinion. Had that Court been as timid as this one the Alabama - Ole Miss football game last week might well have been played with all Caucasian football teams.

Joe said...

DR seems to want to have the USSC "endorse" via the back door here, so to speak, and as Prof. Dorf notes, that isn't how it's done legally.

Circuits can take notice of how other circuits ruled, but need not. At times, the USSC uphold the opinions of outlier circuits (see, e.g., the 2A case). They at times did this after something "percolated" more than ONE YEAR (Windsor was decided June 2013), refusing cert. in other cases.

The Warren Court reference is not overly helpful in this immediate context to your p.o.v. They rather poorly avoided interracial marriage in the mid-1950s (Naim v. Naim, e.g.) and the "all deliberate speed" delay mechanism was in large part a concern about public reaction and opposition.

The law develops over time, including working its way in the lower courts and changing views of the public which affects words like "due process of law." This was very well the story of racial equality.

David Ricardo said...

I don’t know if there is disagreement here, I think the issue of denial of cert may be one of de jure vs de facto. (There is a similar issue with Mr. Dorf and Mr. Buchanan’s argument with respect to the debt ceiling crisis soon to come. They may be absolutely correct in their opinion that the President can and should ignore the debt ceiling law and be on solid legal Constitutional grounds, but the fact of the matter is that such a position is not a tenable political one.)

And so while a Circuit court may be free in the de jure sense to draft an opinion giving states the right to ban SSM, unless the makeup of the Court changes I still fail to see how such an opinion would not be laughed at given the Supreme Court’s denial of cert in the cases that were appealed to it. Or, can someone explain how the Supreme Court, given its current makeup unchanged, would be able to grant cert to a case upholding the ban on SSM, decide that the ban was constitutional and then itself not be subject to ridicule and scorn by just about everyone?

The previous comment appears to argue for the point that yes, banning SSM was constitutional when the public consensus was that SSM should not be allowed, and no, suddenly became unconstitutional when public consensus shifted. Even a broad interpretation of the Constitution would not seem to support that view.

David Ricardo said...

Actually I was more prescient here than I realized. Justice Kennedy just blocked the 9th Circuit decision from going into effect in Idaho. Huh? Let the scorn begin. (Yes I realize he will probably block it only temporarily, don’t write letters).