Katie Eyer pens a timely essay in the Yale Law Journal Online about how popular constitutionalism shaped the DOMA litigation in the lower courts, with a focus on the importance of the President’s decision not to defend the law. Here is the abstract of Lower Court Popular Constitutionalism.
Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors — social movements, the federal political branches, state and local political entities — play an important role in shaping constitutional meaning. But to date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level — rather than throughout the federal judiciary — can be shaped by such popular constitutional influences.In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement — and the history of gay equality litigation that preceded it — to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue. Tracing the approach of the lower federal courts to gay claims for heightened scrutiny in the period both preceding, and following the Obama Administration’s announcement, Eyer shows that — unlike the Court itself — the lower courts have typically demanded authoritative doctrinal guidance before meaningfully shifting their constitutional approach. However, it appears that such guidance need not be provided by the Supreme Court itself, but may in some circumstances derive from authoritative popular constitutional actors, such as the President or Congress.
The Essay concludes by drawing on existing scholarship regarding lower court constitutional adjudication (and the role culture that surrounds lower court constitutional adjudication) to explain this history and to sketch a broader theory of the lower courts as potential receptive sites for popular constitutional influences. As this section describes, the history of lower court adjudication in the gay equality context is deeply consonant with what a broader theory of lower court popular constitutionalism would suggest, given the differing institutional roles ascribed to the Supreme Court and the lower federal courts as constitutional adjudicators.
On the President’s role:
In contrast, President Obama’s popular constitutional intervention seems to have jump-started a much deeper renewal of constitutional dialogue in the lower courts about the proper constitutional stature of gay equality.93 Although based on an independent, extrajudicial assessment of constitutional meaning by the executive branch,94 the Obama intervention seems to have been received by the lower courts, in the absence of authoritative guidance from the Supreme Court, as a signal that heightened scrutiny is once again a respectable—if perhaps not mandatory—doctrinal approach.95 And, given that the factors warranting heightened scrutiny tend to, if fully analyzed, support LGB claims for heightened scrutiny, such doctrinal “space” may well lead to more profound shifts in the lower courts’ gay equality approach.
And indeed, as both the Obama intervention and the history of gay equality litigation generally suggest, the institutional relationship of the lower federal courts to popular constitutional influences may be quite different from that of the Court itself. Thus, the history of gay equality claims in the lower federal courts suggests that such courts may be slower and more hesitant than the Supreme Court to make doctrinal moves responsive to broader shifts in the constitutional culture, particularly in the absence of some clear doctrinal signal from the Court itself. On the other hand, as to targeted interventions by authoritative popular constitutional actors (such as the President and perhaps Congress) the Obama experience suggests that the lower courts may—in appropriate circumstances98—be at least as receptive a site for popular constitutional understandings.
In the Affordable Care Act litigation, similar currents of popular constitutionalism pervaded the opinions in Virginia and Florida, as crazy arguments were moved from off-the-wall to on-the-wall. Before the Supreme Court could ever take this case, it had to gain validity, the district courts had to buy it.
I include this vignette in Unprecedented concerning Judge Hudson’s critical ruling in favor of the challengers:
Regardless of its ultimate legal merit, Cuccinelli’s suit played a pivotal role in advancing the challenge when Judge Henry Hudson ruled that the ACA exceeded the commerce power of Congress. That ruling, by a single district court judge, changed the entire discourse surrounding the case. Immediately after the ruling, Yale law professor Jack Balkin fired off an email to his adversary and longtime friend, Randy Barnett. It read, “Your argument is officially not frivolous.” For the first time, Obamacare supporters started to worry. And Judge Hudson’s ruling made it that much easier for any other judge to rule the same way—as one soon would.