Amanda Frost on Chief Justice Moore and the "Inferior" Federal Courts

[The following guest post is by my friend and WCL colleague Amanda Frost:]

Alabama Chief Justice Roy Moore is making news again.  As reported on this blog by Howard Wasserman, he has advised Alabama probate judges to ignore an Alabama federal district court’s ruling that Alabama’s ban on same sex marriage is unconstitutional.  In a fascinating memo laying out his position, Moore argues that state courts are not obligated to follow lower federal courts’ decisions.  I’m very interested in this question, and I recently wrote an article examining the constitutional relationship between state courts and the lower federal courts.  (My article was cited by an Alabama Supreme Court Justice Bolin, who concurred in that Court’s decision on Monday refusing to “clarify” the question for the probate judges.)

I begin my article by noting that states and lower federal courts often disagree over the meaning of federal constitutional law, creating intra-state splits that can linger for years before the Supreme Court grants certiorari to resolve them.  Those splits occur because most (though not all) state courts adopt the mainstream view that they need not follow lower federal court precedent.  But the constitutional arguments for that position are surprisingly shaky.  For example, Chief Justice Moore (like others) argues that state courts don’t have to follow lower federal court precedent because lower federal courts don’t review state court decisions.  But of course appellate review is not the primary reason that one court follows another’s precedent.  (If it were, then all federal courts should be free to ignore state supreme courts’ views on state law, since state courts never review federal court decisions.) 

True, as a constitutional matter Congress is under no obligation to establish lower federal courts, and thus the Framers accepted the possibility that state courts would decide all federal questions in the first instance.  But Congress has created a large network of “inferior” federal courts, so perhaps the presumption should now be that these courts’ decisions “preempt” conflicting state court decisions.  Moreover, the Framers assumed that Supreme Court review would always be available to reverse recalcitrant (or simply wrongheaded) state judges who failed to follow federal law.  That was true in the early days of our nation, but in an era in which the Supreme Court reviews no more than a handful of state court decisions each year, it makes sense to require state courts to avoid creating intra-state splits by following their regional court of appeals. 

Some might argue that requiring state courts to follow lower federal court precedent would impinge on state sovereignty.  But state sovereignty arguments in favor of state court independence seem particularly weak in our cooperative system in which state courts are required to hear federal issues whether they want to or not, and are also required to follow the precedent set by the U.S. Supreme Court.  Moreover, state executive branch officials are required to follow lower federal court decisions, so why shouldn’t state judges be required to do so too?  [Aside:  In my view, Chief Justice Moore errs by failing to acknowledge that state probate judges are acting as executive branch officials, and not judges, when they grant marriage licenses.]

In my article, I acknowledge that state courts are unlikely to start following lower federal court precedent just because the constitutional underpinnings for that position are weak.  But I argue that Congress, or even the Supreme Court, could establish a rule requiring state courts to follow their regional federal court of appeals.   This would preserve the benefits of “percolation,” by which an issue gets thoroughly vetted in the lower courts before Supreme Court review, but would also avoid the problem of intra-state conflicts.  If such a rule were in place, Chief Justice Moore would have one less leg to stand on.