The South Carolina same-sex marriage order, limits on judicial power, and judicial supremacy

A federal district court in South Carolina issued a decision today that applied binding Fourth Circuit precedent to require same-sex marriage in South Carolina. (HT: Howard Wasserman at Prawfsblawg.) The district court refused to issue a stay pending appeal but did issue a temporary stay to give state officials time to seek a stay from the Fourth Circuit or the Supreme Court. In doing so, the court noted that a stay request in a similarly situated case from Kansas is pending at the Supreme Court right now.

On one level, this was a super-easy case, as easy as they come. A federal district court must follow binding circuit-court precedent. But there are some tough issues in the case as well. Consider the juxtaposition of the decision on the merits (plaintiffs win and should get their marriage license) with the practical effect (plaintiffs cannot get their marriage license while the ruling remains  stayed). Consider, further, the district court's acknowledgment that the temporary stay was unwarranted under the normal test for a stay:

The Court is mindful that the strict application of the four part test for the granting of a stay would result in the denial of even this one-week temporary stay. However, sometimes the rigid application of legal doctrines must give way to practicalities that promote the interest of justice. Providing this Court's colleagues on the Fourth Circuit a reasonable opportunity to receive and consider Defendant Wilson's anticipated petition for an appeal stay justifies this brief stay of the Court's injunctive relief in this matter.

Part of the problem here is that nationwide constitutional change is a messy process when carried out via federal courts of limited jurisdiction. Even if one thinks the Constitution is what the courts say that it is, the Constitution today means something different in Columbus than it does in Charleston until the Supreme Court promulgates a ruling from its perch in the District of Columbia. (And even that assumes we know what the Constitution means in Charleston while the ruling effectuating same-sex marriage there is stayed.)

There are many problems with judicial supremacy, but one of its touted benefits is a settlement function of sorts to eliminate messy disputes about constitutional meaning once the court of supremacy has spoken. This settlement function is not always successful; some Supreme Court rulings exacerbate constitutional conflict, as with Roe v. Wade. But in theory, at least, judicial supremacy provides a solution to problems presented by constitutional change.

By providing, roughly speaking, that our country's supreme law is what the Supreme Court declares the Constitution to mean, judicial supremacy serves the functions served by all three kinds of secondary rules identified by H.L.A. Hart as necessary for a well-working legal system. These are rules of recognition, rules of change, and rules of adjudication. Judicial supremacy looks like a rule of recognition. You know what the law is by looking to what the Supreme Court says that it is. But it operates via rules of adjudication. These govern how and when the Supreme Court can declare what the law is. And it functions as a rule of change. Constitutional law changes as the Supreme Court, following rules of adjudication, authoritatively declares it to change (rule of recognition).