Could attempting to codify case law that was decided many years ago open up the legal question again? As of right now, gay marriage is legal based off of the case law resulting from the decisions of United States v. Windsor and Obergefell v. Hodges. These cases struck down Sections 2 and 3, respectively, of the Defense of Marriage Act (Section 1 was merely the short title). DOMA itself though was never repealed. Now, more than five years later, if Congress were to pass a law officially repealing DOMA, could they be sued by right-wing groups attempting to bring the legal question back? We've already seen the tactics of completely ignoring Supreme Court precedent being used by those on the right with the legal crisis surrounding the Texas abortion ban. Would right-wing groups have any sort of luck suing a repeal of DOMA, or would a lower court make quick work of their complaint and rule against them, citing the above cases? I guess, in short: if Congress repeals DOMA (in line with case law), could right-wing groups sue over that with any success? Edit: I see my original question was not worded well, and it actually was not what I was attempting to ask. So, to rephrase: if Congress passes a law that explicitly allows gay marriage, could there be a lawsuit with any amount of success over that law?
Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers.
I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand.
You have asked two quite different questions there. I’ll address the second part first (where Rob argues for the decision in Bob’s favour to be overturned in his response to Bob's appeal), because it’s easier. For both parties to partially succeed at trial, and both parties to contend on appeal that they should have been wholly successful, is not that unusual. It is usually called a cross-appeal in Commonwealth jurisdictions, or in the Supreme Court of the United States, a cross-petition. An example from the United Kingdom: in R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the court dealt with four appeals arising out of challenges to the so-called bedroom tax. In one case, the claimant succeeded on one of two grounds, the government appealed, and the claimant cross-appealed on her failed ground: The Rutherfords succeeded in their claim on the ground of disability discrimination. [Ms A’s] claim succeeded on the grounds of sex discrimination. Both A’ and the Rutherfords’ Equality Act claims were rejected. The Secretary of State appeals the Court of Appeal’s decision to allow the Rutherfords’ and A’s discrimination claims. A cross-appeals the rejection of her Equality Act claim … The Secretary of State’s appeal in respect of A is allowed, and A’s cross appeal is dismissed, by a majority of 5 to 2. The first part of your question is more difficult, which is why you have received two conflicting answers. Usually appellate courts have the formal power to go beyond the issues raised by the parties, as pointed out by @Dale M. In any event, if an apex court exceeds its powers, there is no further court of appeal to say so. However, as @ohwilleke points out, to decide the case on a ground not argued violates due process. When an appellate court does this, it is said to act “on its own motion” or sua sponte. As @ohwilleke says, in the United States, appellate courts may be able to affirm the trial court’s decision for any reason supported by the record, even if not raised by any party. This is the “right for any reason” or tipsy coachman doctrine. However, your question asks whether a court can overturn part of decision not appealed against. That is, by appealing his partial win, does Bob run the risk of the court ruling sua sponte that he ought to have suffered a complete loss? This is discussed in Miller, ‘Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard,’ 39 San Diego Law Review 1253 (2002). In the introduction, Miller observes: In fact, some of the Supreme Court's most famous opinions decided issues not presented by the briefs or addressed below. In Erie Railroad v. Tompkins, the Court overturned sua sponte an ancient precedent on applying the common law in diversity cases. Mapp v. Ohio overrules a prior case and applied the Fourth Amendment exclusionary rule to the states, without briefing or argument on the issue. In Washington v. Davis, the Court decided that Title VII standards did not apply to constitutional discrimination, even though the parties had agreed that they did. Younger v. Harris prohibits injunctions against pending state court criminal cases, even though the issue was not argued on appeal. Indeed, in Stanley v. Illinois, the Court held that due process requires hearings and an opportunity to make submissions before a state can terminate the parental rights of unwed fathers. But the Court decided this without briefing or argument – without a hearing on the issue or an opportunity for the parties to make submissions. Most of those cases involve a petition for certiorari in which the petitioner got more than they asked for. However, Younger v. Harris is closer to the Bob/Rob scenario. Younger, the District Attorney of Los Angeles County, prosecuted Harris under the California Criminal Syndicalism Act. Before the criminal trial, Harris sued Younger in the Federal District Court, which held the Act void for vagueness and overbreadth, and enjoined the prosecution. Younger appealed to the Supreme Court, but rather than determining whether the Act was constitutional, the Supreme Court reversed the district court’s decision on the ground that federal courts should only enjoin state criminal prosecutions in extraordinary circumstances. So, Younger “won,” but Harris’s constitutional argument remained open and supported by the district court’s opinion, which Younger could not challenge again without first securing a conviction at trial. To summarise, appellate courts sometimes do overturn decisions based on arguments not raised by the parties. However, this is exceptional and is generally considered procedurally unfair. If an appellate court thinks the parties have missed an important legal argument, it is more common and appropriate for the court to raise it at the hearing, and invite the parties to consider and make submissions about it.
This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)&mdash; which ruled that peonage was involuntary servitude&mdash; and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school.
The answer isn't clear, but Justice Kavanaugh's concurrence in Dobbs suggests that such a prosecution would be unconstitutional: May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause. Dobbs. v. Jackson Women's Health Org., 597 U. S. ____ (2022). Kavanaguh relied largely on the Supreme Court's decision in Bouie v. City of Columbia, 378 U. S. 347 (1964). There, black protesters were charged for trespass because they staged a sit-in at a diner and refused to leave when police told them to. They argued they couldn't be convicted because the state's trespass statute only prohibited entering land after being told not to, but the courts convicted them anyway, holding that the statute also outlawed remaining on land after being asked to leave, even though the statute said nothing like that. The Supreme Court reversed the convictions, holding that &quot;an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.&quot; By applying such a construction of the statute to affirm their convictions in this case, the State has punished them for conduct that was not criminal at the time they committed it, and hence has violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits. Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). But Kavanaugh's opinion isn't controlling, and Bouie isn't exactly on point, so the question remains open. The defendant probably has the more straightforward argument -- the abortion was legal up until Dobbs was decided -- but there's a pretty good argument for the state, as well: When Roe was still good law, abortion law was quite fuzzy, so it was never entirely clear whether new restrictions on abortion were or were not unconstitutional. Given those conditions, the state laws outlawing abortions were clear enough to provide fair warining, even if there were legitimate questions as to the constitutionality of those laws; if a woman wanted to do something contrary to the law, she should have petitioned the courts to invalidate it, rather than simply breaking it. So there's no real way to say what the answer is at this point, but I suspect we'll get a real answer before too long.
You've basically described two of the ends of the pole in theories of jurisprudence (there are dozens of ends). There is no theory of law that relies purely on &quot;spirit&quot; (also no theory that actually relies on the letters uses=d in writing law), instead, everybody interprets the text (the words enacted by the government) and some people supplement their interpretation with consideration of &quot;other factors&quot;, such as assumed legislative purpose. Certain scholars and judges are inclined to put most weight on the actual wording of the law, while others are inclined to let purposive considerations dictate the interpretation of a law. Interpreting law by W.N. Eskridge is an informative guide to supplementing a reading of the statute with anciliary considerations. Antonin Scalia is the best-known proponent of the textualist approach.
Prior to that act, civil procedure in federal courts was non-uniform (historical overview). The main problem seems to be that courts were supposed to conform to the procedure of the state in which the court is located (as mandated by the Conformity Act of 1872). The "has to" reason is that SCOTUS at the time did not feel that it was authorized by the Constitution to write its own rules when Congress could have done so, see Wright &amp; Miller Federal Practice and Procedure. The root problems seems to be the Process Acts of 1789 and 1792, which in the latter case did not allow courts to set rules for actions at law, and in the former case required courts to apply rules in effect when the state joined the Union (regardless of how the rules changed subsequently).
The Answer Depends Upon The Facts Of The Case Related To The Forum Where The Suit Is Commenced The analysis depends upon some key facts that a person asking a question might not know, because they are not intuitively obvious and have actually changed in the last few years, without knowing the relevant law. When The Forum State Has General Jurisdiction Over All Defendants The most important question to consider is this one: Is the state in which the class action suit is brought is home to the headquarters of the US manufacturer (or a state where the manufacturer has a substantial equivalent to a headquarters)? This question matters because, if and only if the answer to this question is &quot;yes&quot; then, &quot;general jurisdiction&quot; would be present under a U.S. Supreme Court precedent established in 2014. If a forum state's courts have &quot;general jurisdiction&quot; over a defendant, this means that the defendant can be sued in that forum on any cause of action against that defendant arising anywhere in the world, regardless of any other relationship that the claim has to the forum state (except for claims in the exclusive jurisdiction of the federal courts which can be brought in a U.S. District Court located in the same state, or in an arbitration forum pursuant to a valid arbitration clause that binds the parties, an issue beyond the scope of this question and answer). Until recently general jurisdiction over a defendant (i.e. jurisdiction over any lawsuit against a defendant without regard to the particular facts of the case) was present in any state where a company has a permanent office for the conduct of business, under half a century of precedent on the issue that traced back to a U.S. Supreme Court case known as International Shoe v. State of Washington, 326 U.S. 310 (1945). In the case of large corporations doing business nationwide, this usually meant that a plaintiff had a large number of states to choose from in which a defendant could be sued on any matter whatsoever which also facilitated the filing of class action lawsuits with plaintiffs from all over the world covered by a single lawsuit. But, in the U.S. Supreme Court case of Daimler AG v. Bauman, 571 U. S. ___ (January 14, 2014), general jurisdiction was limited to the state where the headquarters of the business is located, or another state the defendant is otherwise equally &quot;at home.&quot; (For example, the state where Amazon.com chooses to locate its proposed &quot;HQ2&quot; in the case of a lawsuit against Amazon.) If so, the foreign plaintiff member of the class can probably join the lawsuit, since general jurisdiction is present. When The Forum State Does Not Have General Jurisdiction Over All Defendants But, if the forum of the class action lawsuit is not one of the typically one or two states where the defendant is &quot;at home&quot;, then a U.S. Supreme Court ruling from June of 2017 that significantly changes the law of &quot;specific jurisdiction&quot; probably bars the joinder of the foreign plaintiff as a member of the class. This case holds that specific jurisdiction over a defendant arising solely from the fact that it sold a defective product in a particular state or country which it caused an injury to be limited to plaintiffs who actually purchased the product or suffered an injury in that state. So, if there is more than one defendant, the forum state must have general jurisdiction over all of the defendants, or must have specific jurisdiction over all defendants over whom it does not have general jurisdiction for a reason that applies to all members of the class bringing the lawsuit. For example, if the defective product was an airplane that crashed in California as a result of a defective product, everyone hurt in the crash could sue in a single action in California because that is where the injury occurred to all of them, even if the people on the plane who were injured or died came from different states and countries. Similarly, if the product was defective as a result of design work conducted by multiple large corporate defendants with different home states outside Colorado that took place entirely at a design collaboration workshop at the University of Colorado at Boulder, a class action including all persons injured globally by the defective products could be brought in Colorado, even if the injuries were dispersed all over the world at places where the defective products were delivered. The case adopting this radical change in the law of specific personal jurisdiction is Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. (U.S. June 19, 2017) in which the court finds that &quot;specific personal jurisdiction&quot; (as opposed to &quot;general jurisdiction&quot;) is lacking with regard to the claims of members of the class of plaintiffs who are not California residents in this case brought in a California state trial court (in an 8-1 decision with Justice Sotomayor dissenting). According to the official syllabus of that case: A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. It is not sufficient in the high court's analysis that the corporation is already subject to suit in California as a result of its conduct in California to most of the people in the suit. Instead of analyzing whether California has jurisdiction over the product liability situation, in general, the high court decides that the determination regarding whether California has jurisdiction over a suit against a particular defendant must be made on a plaintiff by plaintiff basis when &quot;specific jurisdiction&quot; rather than &quot;general jurisdiction&quot; is involved. Sotomayor's dissent in this case emphasizes implications of this ruling in the kind of situation posed by this question at Law.SE: Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State. I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. The most serious issues arise in one of the situations that Justice Sotomayor addresses which the majority does not adequately consider in the rebuttal in its own opinion, which is the situation where there are multiple possible defendants with different home states, whose relative liability is unknown or independent or mutually dependent. For example, suppose that the product has two kinds of defectively manufactured components manufactured by companies with two different home states in the U.S. (e.g. an electronic device charging bay and a battery) that are assembled by the customer after they are delivered independently, which, when acting together, cause the assembled product to be dangerous and cause injury even though the design itself is not defective. Under Bristol-Myers, there is no U.S. forum with jurisdiction over all injuries caused by these compound manufacturing defects that can allocate responsibility between the responsible manufacturers on a consistent basis. Why Didn't It Matter That The Drugs Were Distributed By A California Distributor? The high court is also unimpressed with the fact that the drug giving rise to the product liability was distributed by a California company, presumably because the cause of action in question in the case was brought against the manufacturer as a strict liability defective product claim, rather than as a claim against a seller of the product arising from a warranty that the product was free of defects arising under the Uniform Commercial Code or an express warranty. This makes sense if the California distributor was a wholesale company not in direct privity with the retail buyers of the products from retail pharmacies who were injured by the products. The wholesaler could be sued under the Uniform Commercial Code on its warranty to the buyers of the drugs, only by the intermediate wholesalers or retail pharmacies that bought the drugs. The wholesaler could also be sued on its warranty only if those direct buyers themselves suffered injuries as a result of the defective product. For example, a retailer might have injuries in the nature of breach of warranty liability in suits brought against retail sellers by injured consumers under the Uniform Commercial Code that the retail sellers would be seeking indemnification of from the California based wholesale distributor. But, Bristol-Meyers does mean that it is basically impossible for injured consumers who were not injured in the forum state to sue both the manufacturer of the defective drugs (where jurisdiction would be present in New York and New Jersey) on a tort theory, and the distributor of the defective drugs (where jurisdiction would be present in California) in the same action. So, it is effectively impossible in this case for all people injured by the defective drugs to sue all of the potential Bristol-Meyers case defendants in a single lawsuit. Statutory Considerations Existing statutory limits on federal court jurisdiction limit the jurisdiction of the U.S. District Courts in most cases of cases to cases in which a state court in the state where the U.S. District Court is located would have either general jurisdiction or specific jurisdiction of the defendant (without regard to the fact that the case might be within the exclusive jurisdiction of the federal courts as a matter of subject matter jurisdiction which pertains to the nature of the cause of action asserted rather than the ties of the defendant to the forum state). But, the decision leaves Congress with the option of potentially changing that statute which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, as it already does in cases that are predominantly &quot;in rem&quot; (e.g. interpleader cases and interstate boundary and real property title disputes), in bankruptcy cases, and with respect to the subpoena power of U.S. District Courts. The official syllabus also notes that: The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. Constitutionally, Congress still has the authority to vest all U.S. District Courts with jurisdiction over any case in which the United States treated as a single state for purposes of general jurisdiction and specific jurisdiction analysis. This would leave the question of which particular U.S. District Court was the proper one to file in as a question of venue (which does not have a constitutional dimension) rather than a question of jurisdiction (which is subject to constitutional considerations), and many legal scholars have urged Congress to do just that. But, so far, Congress has not altered a status quo that does not give U.S. District Courts the maximal jurisdiction allowed under the United States Constitution. But, so far, Congress has instead taken an intermediate position on the geographic scope of federal court jurisdiction in the jurisdictional portion of the Class Action Fairness Act of 2005 (which also limits the extent to which &quot;coupon settlements&quot; of class action cases are permitted). In particular (per the link in this paragraph): The Act permits federal courts to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at least 100 plaintiffs; and where there is at least &quot;minimal diversity&quot; between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). The court, however, may decline jurisdiction under certain circumstances, and is required to decline jurisdiction in certain others. But, while the Class Action Fairness Act of 2005 allows many class action lawsuits which would otherwise be brought on exclusively state law claims in state court to be brought in federal court, or removed from state court to federal court, it does not authorize class action lawsuits that could not be brought in a state court which a U.S. District Court is located due to lack of either general jurisdiction or specific jurisdiction from being brought in that federal court either. The Class Action Fairness Act of 2005 was favored by businesses likely to be defendants in future class action lawsuits (such as manufacturers), because state civil procedure law in some U.S. states such as California, is more favorable to class action plaintiffs than federal civil procedure laws related to class actions.