Emails, Stephen I. Vladeck, professor, American University Washington College of Law, July 22-23, 2015

4:03 p.m.

July 22, 2015

To make a long story short, what Senator Cruz said is literally true, but deeply misleading. Technically, the only parties that are bound by a ruling by the Supreme Court are the parties to that litigation—and so, in the context of the marriage cases, the small subset of states whose bans on gay marriage were before the Court. But the way our system works, every state and federal court is ultimately subject to the supervision of the Supreme Court at least where federal law is concerned. That’s why those courts generally apply the Constitution as it has been interpreted by the Justices in Washington; if they don’t, they’re likely to be reversed. And so, when a state has a good faith reason to believe that the current Supreme Court might not follow an old precedent (as, for example, when circumstances have changed or there’s been a large turnover among the Justices), it might be reasonable for a state to therefore conclude that it can adopt a federal constitutional rule that differs from what the Supreme Court has articulated. But in the immediate aftermath of a decision like this one, when there is no reason to think the Supreme Court would answer the question any differently were a different state a party to the suit, it’s unreasonable for a state official or state court to decline to follow that ruling. They’re not literally bound to do so (and, thus, can’t be held in contempt for failing to do so), but they are practically bound by dint of the Supreme Court’s appellate jurisdiction.

As Justice Robert Jackson once put it, “we’re not final because we’re infallible. We’re infallible because we are final.”

So Senator Cruz is literally correct, but his statement is insinuating something broader that is radically at odds with long-settled practice—a practice he knows very well, and a sentiment for which he should know better.

Hope that helps,

-steve

From: Selby, Gardner (CMG-Austin)

Sent: Thursday, July 23, 2015 10:56 AM

To: Selby, Gardner (CMG-Austin)

Subject: Texas reporter, your thoughts on this law professor's response?

Hello again.

I fielded several expert replies to that query yesterday about Sen. Cruz’s claim, most of them saying he has a technical point, but that’s all.

I also got an emphatic response about Cruz being precisely correct. It came from Lynn Wardle, a BYU law professor. I am pasting that reply below.

Thoughts?

g.

PASTE

Mr. Selby,

Senator Cruz is correct. Precisely correct.

First, as he puts it - CRUZ: They cannot ignore a direct judicial order. The parties to a case cannot ignore a direct judicial order. But it does not mean that those who are not parties to case are bound by a judicial order.

​Second, he correctly also notes:

Those who are not parties to the suit are not bound by it.

Now, in subsequent litigation, other courts will follow the precedence of the court, but a judicial order only binds those to whom it is directed, those who are parties to the suit. That's the way our litigation system works.

​ ​

10:04 a.m.

July 23, 2015

I don’t see how that’s inconsistent with anything I said (other than spelling precedents incorrectly). :-)  Like Senator Cruz, though, it misses the far more important point that this statement is technically correct, but deeply misleading. The question is not whether states are “bound” to follow a Supreme Court ruling to which they’re not party such that they can be held in contempt for failing to do so; the question is whether states have a good faith reason to adopt an interpretation of the federal Constitution that is at odds with the one provided by the Justices. Where, as here, there’s been no passage in time, no change in circumstances, and no shift in the composition of the Court, I just can’t see what such a reason could possibly be—or how it could be in good faith.

-steve