Hammer Blow

About this Episode

What do the federal appeals courts’ striking down of same-sex marriage bans actually mean for marriage equality in the states? Are the state courts bound to follow these decisions while the Supreme Court pursues other interests? Well, Christian got this completely wrong last week, and luckily Michael Dorf is on the line to set us straight. Knowledge bombs galore are dropped.

This show’s links:

• Michael Dorf’s profile, his writing, and his world-famous blog Dorf on Law
• Amicus, the new Slate podcast by Dahlia Lithwick
• Oral Argument 36: Firehose of Equality, the last episode in which Anthony Kreis was terrific and Christian made an error that led to this show
• Michael Dorf, No Massive Resistance to Same-Sex Marriage from South Carolina
• Michael Dorf, The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria
• About claim preclusion and nonmutual issue preclusion; United States v. Mendoza (holding that issue preclusion does not apply against the federal government)
• Colin Wrabley, Applying Federal Courts of Appeals’ Precedent
• The Supremacy Clause of the U.S. Constitution
• Lochart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”
• Martin v. Hunter’ Lessee
• About the grimly named Antiterrorism and Effective Death Penalty Act, which everyone calls “the AEDPA,” and pronounces ED-puh
• The federal habeas statute, reflecting in subsection (d) the deference required by the AEDPA to state court judgments on issues of federal law in habeas, which federal law must be “clearly established . . . by the Supreme Court” to be a constraint in habeas on states at all
• Teague v. Lane
• About the removal jurisdiction of federal courts, the ability of a defendant to move a state court action to a federal court under certain circumstances
• Guido Calabresi, Federal and State Courts: Restoring a Workable Balance
• Henry Friendly, In Praise of Erie — And of the New Federal Common Law (unfortunately only available for a fee on Hein Online)
• State v. Dukes (an intermediate South Carolina appellate ruling citing State v. Ford Motor Co. for the proposition that South Carolina courts are bound by the constitutional rulings of the Fourth Circuit)
• Kevin Walsh, Re: SSM Cert Denials (suggesting South Carolina should review and change its apparent approach to Fourth Circuit precedent)
• Michael Dorf, Should Anti-SSM Appeals Court Judges Rule For Same-Sex Marriage Based On The Cert Denials?
• Michael Dorf, Prediction and the Rule of Law (an article analyzing the general point applied in the above-linked blog post)
• Oral Argument 28: A Wonderful Catastrophe, which is all about and contains links for the famous Erie case
• Michael Dorf, How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era
• United States v. Windsor
• Michael Dorf, Cert Denied Is Justice Delayed: SCOTUS Kremlinology in the SSM Cases
• Stuart v. Laird and some background