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Tuesday, March 03, 2015

Symbolic mandamus

Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.

SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.

This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action).  The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction. 

Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]

Posted by Howard Wasserman on March 3, 2015 at 11:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I think it will invariably favor the Feds for two reasons. First, and primarily, SCOTUS always gets the last word and the most direct path to SCOTUS is through the federal system (one less layer and no Independent-and-Adequate to deal with). Second, the popular understanding is that fed courts do federal law and state courts do state law--this is something I have to disabuse my students of every year and it is even more engrained in the popular media and discussions. For related reasons, the federal courts of appeals also enjoy greater prestige, with several well-known judges. So I simply cannot imagine the NYT ever saying "The Eleventh Circuit was wrong to ignore the Alabama Supreme Court's handiwork."

Posted by: Howard Wasserman | Mar 6, 2015 3:19:16 PM

I'm not taking her totally off the hook. It just isn't quite the same to cite Grande and the state supreme court here. And, yes, I realize you aren't playing devil's advocate. That was said tongue in cheek. You just appear -- it isn't just because of my substantive position on the merits of SSM either -- to be forcing things in one way too much.

The basic technical analysis and rejection of some reactions is fine. But, some of analysis just comes off as too one-sided. You follow-up, e.g., by saying that the op-ed doesn't clarify what standards are appropriate. Okay. Maybe it could have done more (putting aside time restraints). Still don't see how it 'implicitly favors the federal system' as a whole.

That's what I mean. I see that repeatedly in these posts -- you make some sound points but don't adequately cover the other side.

Posted by: Joe | Mar 6, 2015 2:23:57 PM

And Granade could have stayed her own order, so let's not entirely let her off the hook. Or, come to think of it, should could have made sure the plaintiffs were suing the right defendants for the right things. I have blamed the plaintiffs' attorneys a lot; she could have controlled some of this.

Posted by: Howard Wasserman | Mar 6, 2015 11:47:45 AM

But it gives no indication of what should drive or inform that prudence or why, other than that it is ruling in a different direction than everyone else and/or that it should not rule contrary to how SCOTUS is likely to rule and/or that it is ruling contrary to how NYT would like (make no mistake--no one would be critiquing SCOA if it said the state ban was unconstitutional).

I am not playing devil's advocate. I am trying to suggest that procedural/political objections to what Moore and/or SCOA did are unwarranted, much as are most complaints about "judicial activism" over a decision someone doesn't like. If the decision is wrong, it is because it is wrong on the merits of its 14th Amendment analysis--and we should be talking about how and why it was wrong.

Now *that* is quixotic.

Posted by: Howard Wasserman | Mar 6, 2015 11:30:33 AM

ETA: Part of why it wasn't "quixotic" is the likelihood Grande ruled the same way the USSC did. Likewise, her ruling could have been stayed (like the Nebraska ruling was) by appellate courts & it isn't her fault it wasn't. Also, the breadth of the Alabama ruling is quixotic here especially given the likely results in June.

Posted by: Joe | Mar 6, 2015 9:51:54 AM

Not sure how it "implicitly privileges the federal system" since it says BOTH systems should from TIME TO TIME (the context of the specific controversy matters here) be prudent.

"First sentence" seems to mean the quote, since the first sentence of the actual op-ed is "ON Tuesday the Supreme Court of Alabama prohibited the state’s probate judges from issuing marriage licenses to same-sex couples." But, why would the USSC ruling six months from when Grande ruled make her "quixotic."

This is getting a tad absurd. With respect. Is this some sort of devil's advocate exercise?

Posted by: Joe | Mar 6, 2015 9:47:52 AM

Two problems with that position: 1) It implicitly preferences the federal system over a state system, even though lower federal courts are on the same level with state supreme courts. In other words, other than SCOTUS, why should the state courts be the ones refraining from ignoring the other's handiwork? (Other than that the NYT favors the position that the lower federal courts are taking and opposes that of the Alabama Supreme Court or some first-in-time idea). 2) On the logic of the first sentence of the op-ed, Judge Granade never should have ruled in Searcey or Strawser, since SCOTUS granted cert. from the 6th Circuit on January 16, about two weeks before Granade ruled.

Posted by: Howard Wasserman | Mar 6, 2015 9:26:23 AM

This NYTimes op-ed seems apt:

"Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork."


Posted by: JHW | Mar 6, 2015 9:11:27 AM

But all of Moore's actions prior to the mandamus have been proper, substantively and procedurally. The only problem is the goal to which they were directed--and that is just a matter of disagreeing with his goal. He was acting in an administrative capacity, so "instigating" things "on his initiative" is within his power.

1) He was right that probate judges were not bound by the injunction.
2) He was right that the AG, under the original injunction, could not compel the probate judges to do anything.
3) He was right that state officials are not bound by federal district precedent.
4) He was right that he had the power, as the head of the judiciary, to at least advise probate judges about their obligations, if not to compel them to act or not act. In this respect, what Moore did was no different than what Kamala Harris did in ordering all county clerks in California to issue licenses on the strength of Judge Walker's opinion.

Also, is it even clear what role Moore played in the mandamus? The order is per curiam, then the end says six justices concur, one concurs in part and in the result, and one dissents. Moore's name does not appear in the order. Did he recuse? The order did not say so. Did he write the opinion? The whole point of doing a per curiam is not to indicate the author.

Posted by: Howard Wasserman | Mar 5, 2015 6:37:36 PM

We're all formalists now, Howard?

You do not need to look for sinister underpinnings. You have a rather blatant set of actions instigated by Chief Justice Moore on his own initiative. The fact that his partisan stratagems resulted at a later point in a formalistically "legitimate" mandamus petition is a pathetically thin screen for his extra-judicial actions and motives.

It is precisely actions like Moore's that undermine public respect for the judiciary, call into question the legitimacy of the legal system, and yes, justify the continuing viability of scholarly critiques that have developed out of realism.

Please, let us know, what functional value does your analysis add to understanding of legal processes? Hey, look, even bigots and reactionaries can act within the formal constraints of federalism doctrine, so long as they are responding to a properly formulated petition for mandamus!

Posted by: Anon | Mar 5, 2015 6:00:43 PM

"fear zero consequences"

Federal judges are entrusted with terms of "good behavior" which are de facto life terms to protect them when they adjudicate. State judges tend to have shorter terms & in various cases political checks including elections/recalls.

Here, same sex couples have the federal courts as relief, including the Supreme Court of the U.S. to uphold the federal Constitution when state courts are determined to have applied it incorrectly.

I'm unsure who should have the power to "remove instantly" state judges who make bad rulings, particularly when the bad rulings are contrary not to direct Supreme Court rulings, but rulings of federal judges. Consider, e.g., if a state court rules differently involving Obama's executive policies than some conservative federal district judge.

I get the idea that the intemperate comment by "n" here affects the tone of the these posts, but there is a middle path here.

Posted by: Joe | Mar 5, 2015 10:44:43 AM

The US Constitution according to whom? Judge Granade? Other federal courts? Their interpretations are no more or less "the US Constitution" than SCOA's or the Sixth Circuit's.

Posted by: Howard Wasserman | Mar 4, 2015 11:33:36 PM

Oh please. The actions of SCOA (no T) are in defiance of the most supreme legal authority there is - the U.S. Constitution.

Besides that, they are transparently political, disgusting, and morally reprehensible.

The fact that judges on the highest court in a state can do something so blatant and fear zero consequences shows what a sorry state the legal system is in.

In any sane, functional legal system, judges who pulled this kind of stuff would be removed from the bench instantly.

Posted by: njim | Mar 4, 2015 9:13:09 PM

John Oliver's recent discussion of how politics in a troubling fashion affects judicial decision-making was a warning deemed to be well presented.

The "symbolic" moves made here, some of Roy Moore's more strident comments that were cited as mere posturing & the broad path here taken not only because the "controversy" demanded it -- they on their own without asking for briefing on the subject provided a 100+ page broad ruling as noted by JHW goes much further than necessary etc. -- is political in nature.

This is mixed with some more judicial-type moves. This is not really some "sinister" assumption. It is an objective reasonable discussion of what is happening. anon might lay it on too thick, but the 'motive' cited is not just something anon assumes w/o cause.

This is not just a 'substantive disagreement' matter. It is a factor of what is happening that a neutral observer who doesn't care either way would note.

Posted by: Joe | Mar 4, 2015 6:57:17 PM

Howard -

You've really been doing a great job on these Alabama posts--the go-to source.

Posted by: Steve H | Mar 4, 2015 5:24:14 PM

Anon: I am obviously less of a legal realist than you are, so I don't look at judicial motives. I see the court reaching a decision having been presented with a controversy. I refuse to turn substantive disagreement with the result into something more sinister.

Reid: I interpreted that as a fail-safe if the scope of Judge Granade's injunction should be extended. Although the injunction was not so limited by its terms, the court only can enjoin the defendant as to the named plaintiffs (subject to some exceptions not applicable here).

Posted by: Howard Wasserman | Mar 4, 2015 11:29:43 AM

"Kennedy belatedly flip flops, which of course would not be unprecedented for him"

Unsure what this references, especially on something on the level of this. Right at the beginning of his tenure, he joined a decision upholding executions at 16. Eventually, years later, with some water under the bridge, he voted the other way. Other than this, not sure. Other justices also "flip flopped" on things.

"This can't be entirely symbolic given that judges had been more or less free to issue such licenses, but may now only do so if ordered by the federal court."

Yes. JHW also provides additional notes. The professor seems to be bending over backwards to handwave what Moore and now the whole Supreme Court of Alabama has been doing in recent months here. It comes off as a bit much. It is not "entirely symbolic," for the reasons supplied & the fact it is a precedent and signal for some future conflict, which will arise as these things do over time.

Making it harder for a couple even for a few weeks to get married isn't "entirely symbolic," putting aside that symbolism can be powerful.

Posted by: Joe | Mar 4, 2015 10:33:08 AM

Howard, by linking whether the move was "appropriate" only to its technical legality as a procedural matter, you conveniently get to ignore the question of motive. This was a political move by a partisan court led by an expressly populist political figure who managed to achieve popular election as chief justice of a state supreme court by making just this kind of blatantly political move. That is not an "appropriate" act for a judicial officer, and if your analysis blocks or masks that fact, maybe you should rethink its "appropriateness," too.

Posted by: Anon | Mar 4, 2015 9:58:34 AM

Correct me if I am wrong (I read the order with 2 kids hanging on me and sofia the first playing in the background) but in regards to Judge Davis, I read it that he has to show cause why he should be allowed to issues licenses to those other than the named plaintiffs in the cases that the District Court Judge ruled on. That would seem to contravene the whole point of the district court order that prohibited him from enforcing the laws that disallow same sex marriage, since it didn't specifically mention the plaintiffs in the injunction.

Posted by: ReidDA | Mar 4, 2015 9:53:13 AM

Correct me if I am wrong (I read the order with 2 kids hanging on me and sofia the first playing in the background) but in regards to Judge Davis, I read it that he has to show cause why he should be allowed to issues licenses to those other than the named plaintiffs in the cases that the District Court Judge ruled on. That would seem to contravene the whole point of the district court order that prohibited him from enforcing the laws that disallow same sex marriage, since it didn't specifically mention the plaintiffs in the injunction.

Posted by: ReidDA | Mar 4, 2015 9:53:13 AM

There is no reason to view this as inappropriate as a legal matter? A party sought an available form of relief from the court, the court analyzed the appropriateness of that relief, and the court granted that relief. This is one reason mandamus exists--to keep public officials from behaving in a certain way unless/until compelled to do so. You can agree or disagree with the Court's decision, especially as to standing. But it was not an inappropriate move.

Posted by: Howard Wasserman | Mar 4, 2015 9:37:26 AM

This isn't even the sort of genuinely difficult case you could imagine. It's not, say, a divorce case, where Alabama state courts simply must pronounce on whether or not a marriage exists between two people of the same sex. Even in that case, I think I would say they are entitled to, and probably ought to (in a weaker sense of "ought" than "legally required"), defer to at least Eleventh Circuit precedent. (You wouldn't want a situation where state officials are obligated to issue licenses and state courts are obligated to ignore them.) But I see the force of the argument that, since they're not technically bound by circuit precedent, they are obligated to judge the question independently.

But that is not the issue here. The question before the Alabama Supreme Court was not whether or not the federal district court ruling was correct. The court did not have to pronounce its view of the merits (indeed, the issue wasn't even briefed); all it had to do was get out of the way. Such a decision would have been amply justified without needing to rely on any particular view of the constitutional merits of same-sex marriage bans. Instead, it inserted itself into the situation in a way likely to cause more trouble for everyone involved, but exceedingly unlikely to actually prevent same-sex marriage from coming to Alabama.

Posted by: JHW | Mar 4, 2015 8:37:39 AM

I agree that, as a formal matter, the Alabama Supreme Court is not bound by any of the federal court rulings so far. But I think you are tying your judgment about the wisdom and propriety of this particular act of discretion (which they could have gotten out of in half a dozen ways) too tightly to the technical question of whether it directly defies binding precedent or orders conduct inconsistent with a federal mandate. It is one thing to say that state courts are not bound by non-SCOTUS federal courts. It is another thing to say that it is appropriate for them to forbid public officials from complying with non-SCOTUS federal courts in advance of an injunction directly compelling public officials to do so.

Would it change your view if there were an Eleventh Circuit ruling holding same-sex marriage bans unconstitutional? That also wouldn't bind the Alabama Supreme Court.

Posted by: JHW | Mar 4, 2015 8:09:27 AM

SCOTA need not (and should not have to) care what the district court's (or any other non-SCOTUS federal court) view of the law is, anymore than the district court must care what SCOTA's view of the law. Nor is SCOTA under any legal (or moral) obligation to minimize cost or delay, when that is inconsistent with its view of the Constitution. SCOTA has stated and can act on its vision of the Constitution unless and until overruled by a higher court.

Posted by: Howard Wasserman | Mar 4, 2015 7:45:54 AM

"But it cannot be regarded as 'defiant' in any way, since the court is not acting in defiance of any legal authority."

This seems a bit of a stretch. Here there is a federal district court that has already made its view of the law clear, and whose view aligns with the overwhelming majority of other courts and, in all likelihood, the Supreme Court ruling that is coming in a few months. There is nothing stopping other plaintiffs (as you've observed) from getting further injunctions from the district court restricting the scope of the mandamus order. In this kind of situation, what ought to happen, what minimizes costs and delay for all parties, is for Alabama officials to cooperate with the federal courts without needing to be forced to do so couple by couple. That is what has happened almost everywhere else, and that is what was happening in much of Alabama as of yesterday. The mandamus order affirmatively prohibits it from happening. The fact that it does not technically violate the Supremacy Clause does not alter its plain purpose to frustrate and impede the efforts of federal courts to get Alabama officials to respect the constitutional rights of same-sex couples.

Posted by: JHW | Mar 4, 2015 7:27:18 AM

This can't be entirely symbolic given that judges had been more or less free to issue such licenses, but may now only do so if ordered by the federal court.

Posted by: Gus | Mar 4, 2015 12:25:19 AM

Not entirely symbolic, since it stops the ala probate judges who were granting ssm licenses even absent an injunction. And far from obvious that every gay couple in ala is going to sue, rather than just waiting until scotus rules in June. So it may recreate at least in part the stay that scotus recklessly denied. Which in fact would make a big difference if Kennedy belatedly flip flops, which of course would not be unprecedented for him.

Posted by: Hash | Mar 4, 2015 12:09:00 AM

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