Hail to the Chief Justice of the Warren Court in Exile

By Mike Dorf

Since the announcement that the 9th Circuit panel hearing the Perry case includes Judge Stephen Reinhardt (for whom I was a law clerk 20 years ago), there has been considerable speculation about what, if anything, this portends for the case.  Everyone agrees that Judge Reinhardt is likely to be quite sympathetic to the plaintiffs' case on the merits.  How this will play out in the long run is unclear, however.  For example, Orin Kerr observes that Judge "Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices."  Here I want to focus on the first half of that statement.

If Professor Kerr means to say that Judge Reinhardt disregards governing Supreme Court precedent, then I strongly disagree.  Judge Reinhardt cares a great deal about judicial craft, including citing or distinguishing governing precedent.  Where he believes himself clearly bound by Supreme Court precedent with which he disagrees, he states his disagreement but follows the precedent.  (The Watkins litigation in the late 1980s--involving the predecessor policy to Don't-Ask-Don't-Tell--is the clearest example: Judge Reinhardt was unwilling to join more liberal colleagues who wanted to invalidate the military's exclusion of gay service members on equal protection grounds because he thought that result foreclosed by Bowers v. Hardwick, a decision he thought quite wrong but nonetheless binding.)

But there is a second sense in which Professor Kerr's observation can be understood that I think is accurate: Judge Reinhardt resolves cases under existing precedent as he believes those precedents should be read, without regard to whether five or more Justices of the Supreme Court are likely to reverse him.  His view is  that if the Supreme Court wants to make new bad law, that's the Supreme Court's business, but he's not going to do it for them.  This attitude does indeed lead to a high reversal rate but, as he says (in public and in private), they (the Justices) can't reverse them all (his rulings).  For this and other reasons, I like to think of Judge Reinhardt as the Chief Justice of the Warren Court in Exile.

In construing the extant legal materials by his own lights, rather than predicting how he thinks the Supreme Court will rule, is Judge Reinhardt acting inconsistently with his obligations as a judge on what Article III calls an "inferior" court?  Hardly.  Consider that the Supreme Court has said that lower court judges should apply existing precedents, rather than try to anticipate what the Court, as currently constituted, would now do.  The key case is Rodriguez de Quijas v. Shearson/American Express, in which Justice Kennedy (another of my former bosses), speaking for the Court, said: "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."

Now Rodriguez de Quijas is directly relevant to the Perry litigation because of the argument that the Supreme Court has already resolved the issue of the constitutionality of laws banning same-sex marriage.  In 1972, the Supreme Court dismissed an appeal from the ruling of the Minnesota Supreme Court in Baker v. Nelson for want of a substantial federal question.  The Minnesota Supreme Court had rejected a claimed constitutional right to same-sex marriage and because the issue came to the SCOTUS as a mandatory jurisdiction appeal, rather than as a discretionary jurisdiction certiorari petition, the SCOTUS dismissal arguably operated as a ruling on the merits.

If Baker really does stand for that broad proposition, then it controls in Perry to the extent that the Minnesota litigation addressed the issues raised in Perry.  At a bare minimum, Baker does not control the argument--raised by the Perry plaintiffs at trial and thus available as a basis for affirming on appeal--that Prop 8 is invalid as motivated by animus under the theory of Romer v. Evans.  But more broadly, there is good reason to regard Baker as not controlling because neither the Minnesota Supreme Court (in its 5-page opinion) nor the Supreme Court in its one-sentence dismissal had occasion to apply the modern precedents.   More broadly, I doubt that the Rodriguez de Quijas principle was ever meant to apply to summary actions like the SCOTUS decision in Baker.

The core relevance of Rodriguez de Quijas is thus its rejection of what I have called--in a 1995 article in the UCLA Law Review, Prediction and the Rule of Law-- the "prediction model" of lower court decision making.  As I explained there, notions of impersonal justice that underwrite the rule of law, support the notion that a lower court judge should apply the law as he or she sees it by his or her best lights, rather than try to guess what the judges on a higher court will do.  I think I was right in that view, but I'm sure that it was a view that is shared by Judge Reinhardt.  Indeed, I suspect that his influence played some role in leading me to it.