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Reciprocal Legitimation in the Federal Courts System

Posted by on Wednesday, May 10, 2017 in Articles, Volume 70, Volume 70, Number 4.

Reciprocal Legitimation in the Federal Courts System


Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other federal courts is best viewed as neither top-down nor bottom-up, but side-by-side. When the Court intervenes in fierce political conflicts, it may proceed in stages, interacting with other federal courts in a way that is aimed at enhancing its public legitimacy. First, the Court renders a decision that is interpreted as encouraging, but not requiring, other federal courts to expand the scope of its initial ruling. Then, most federal courts do expand the scope of the ruling, relying upon the Court’s initial decision as authority for doing so. Finally, the Court responds by invoking those district and circuit court decisions as authority for its own more definitive resolution. That dialectical process, which this Article calls “reciprocal legitimation,” was present along the path from Brown v. Board of Education to the unreasoned per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges—as partially captured by Appendix A to the Court’s opinion in Obergefell and the opinion’s several references to it. This Article identifies the phenomenon of reciprocal legitimation, explains that it may initially be intentional or unintentional, and examines its implications for theories of constitutional change and scholarship in federal courts and judicial politics. Although the Article’s primary contribution is descriptive and analytical, it also normatively assesses reciprocal legitimation given the sacrifice of judicial candor that may accompany it. A Coda examines the likelihood and desirability of reciprocal legitimation in response to President Donald Trump’s derision of the federal courts as political and so illegitimate.


David W. Ichel Professor of Law and Professor of Political Science, Duke Law School.