Email, Lyle Denniston, reporter, SCOTUS Blog, July 22, 2015

4:44 p.m.

One might say that Cruz is, in part, in good company here.  Abraham Lincoln said, about the Dred Scott slave decision, that Supreme Court rulings only bind the parties to a case.  There is also a story, which historians say is apocryphal, that Andrew Jackson said of the Supreme Court's decision on the plight of the Cherokee Indians in Georgia that "John Marshall has now made his decision, let him enforce it."

Technically, Cruz is right that a Supreme Court decision in a technical sense is immediately binding on only those directly involved in the case.  The Constitution (Article III) limits the authority of federal courts to actual cases or controversies, so the outcome is between the actual litigants.

However, the Supreme Court since 1803 (Marbury v. Madison) has claimed the authority to "say what the law is" constitutionally, and its conclusions on what the Constitution means in a given case are made binding across the land, as a result of the reinforcement of its authority by the Supremacy Clause of Article VI.  Decisions of the Supreme Court are considered to be "made in pursuance" of the Constitution.  So stats must obey those constitutional rulings, unless they are overturned by constitutional amendment.

The Supreme Court, in the 1958 decision in Cooper v. Aaron (the Little Rock high school integration case), said explicitly that the combination of the Marbury decision and Article VI made the Supreme Court's decisions binding on the states.  That decision, by the way, is the only in history where each of the nine Justices explicitly signed the opinion to give it more force.

This does not mean, however, that a Supreme Court decision is self-enforcing.  We have seen, since the Supreme Court decided the marriage cases, that various lower courts have been taking steps to implement that decision in specific cases.   Some have simply dismissed the cases, based on the authority of the Supreme Court ruling, but some have taken the step of seeking new briefs on how that ruling would apply to cases.   In the end, though it may take a few weeks, the Supreme Court ruling is actually going to be made specifically binding as a result of  series of lower court orders, or capitulation by states to what they understand they cannot change.

Sen. Cruz may well be attempting to revive the concept that the states can decide for themselves what the Constitution means, and that they can stand between the Supreme Court and their own citizens.  This is the concept of state "nullification" or "interposition."  It was used by Southern leaders as part of the "massive resistance" movement to Brown v. Board of Education.   Most historians, and many legal scholars, will tell you that the idea of nullification was settled by the Civil War.   But the Supreme Court, in the Cooper decision in 1958, rejected the very notion of nullification in the context of school desegregation.