by Joseph Landau // Associate Professor, Fordham Law School
As chief justice, John Roberts occupies a unique place in the judiciary. While it is not his job to simply validate the decisions of the lower court judges — the Supreme Court should reverse the lower courts when they err — having faith in the lower federal judiciary, and showing respect for the dialogue between the Supreme Court and lower federal courts, might be especially appropriate here.
Since the 2013 Windsor ruling [voiding the Defense of Marriage Act], four federal appellate courts and more than 30 federal trial judges have issued pro-marriage rulings for same-sex couples. (By contrast, only one federal appellate court — the Sixth Circuit, based in Cincinnati — and a handful of federal trial judges have ruled against same-sex couples.) These judges reflect a broad array of appointees by Republican and Democratic presidents alike. Does Chief Justice Roberts truly believe that so many of his lower-court colleagues have gotten the law wrong? Possibly — but the growing consensus on the ground could nudge him to side with a vast majority of his colleagues on the federal bench.