Glenn Greenwald responds to the “judicial tyranny” objection to the California Supreme Court’s ruling on same-sex marriage:
This reasoning — that it undermines “democracy” and constitutes judicial tyranny when a court strikes down a popular law — is so pervasive every time there is a controversial court decision. But it is as woefully misinformed as it is common.
That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court’s decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law’s enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds.
Contrary to Wittes’ extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That’s because, strictly speaking, the U.S. is not a “democracy” as much as it a “constitutional republic,” precisely because constitutional guarantees trump democratic majorities.
I agree. Just because a law enjoys broad public support does not mean that it should not be struck down by the courts. Hell, on 9/12/01 you could probably have gotten a law passed to hang every Muslim in the U.S., but that doesn’t make it a valid law. There is such a thing as a “tyranny of the majority” and the courts are the bulwark against it.
In other news, the sky is blue. Who’s the dumbass who raised the “judicial tyranny” objection, by the way? There’s the information that’s useful…
Wittes typically writes about the politics of law, not its merits. Wittes’ main point is that the California Supreme Court acted in an “undemocratic” fashion – that is, acted contrary to popular opinion – when it struck down a law barring legal recognition of same-sex marriage. Greenwald argues that the US government is not a pure democracy, and that in the US system of government courts sometimes have the duty to make unpopular decisions. I find no conflict up to this point.
But then Wittes said this:
Wittes refers to the “drip-by-drip accretion of power to courts … undermining … the right of the people to govern themselves” without much elaboration. Does Wittes really believe courts shouldn’t have the power to protect the rights of minorities?
Wittes argument would be more powerful if he had said how HE would have decided the case before the California Supreme Court. He never denies that California was discriminating between same-sex and opposite sex couples. Indeed, by noting how the decision will likely provoke a backlash, Wittes concedes that – at least in many people’s minds – the distinction between the label “marriage” and “civil union” is worth fighting over. What legal grounds does the state have to maintain such a distinction? Wittes never ventures to say.
And in the absence of such explanation, the argument seems pretty petty. “How dare gay people demand equal rights? Don’t they realize how much California has given them already? And how dare they advance arguments that require even heros like Barack Obama to confront their own discrimination? We’re the Good Guys – shouldn’t that buy us a ‘pass’?”
It’s one thing to argue that the decision may prove to be impolitic. It’s quite another to argue that judges should base their decisions on politics. I don’t mean to dismiss such an argument. But if that’s what Wittes means to argue, then he should stop pussy-footing around and say it.
I have expressed my own discomfort with the California decision: it’s impolitic. Does that mean I’m embracing unwarranted government discrimination? YES, I AM. Are Democratic politicians doing the same? YES, THEY ARE. At least for now.
Wittes, join me! Acknowledge and embrace your strategic hypocrisy, and you won’t feel the need to be defensive, to project and blame others for your discomfort. If you think that telling certain truths will make people mad and lose votes, say so. But there’s no need to deny the truth.
I don’t think that the courts are bound by majorities–nor should they be; it’s not their role.
However, judges often act on factual issues, and often base their decisions to at least some degree on policy concerns. And when they do so, we generally expect (hope?) that the court will be populated by judges who share at least some of a common reality with the American public. We hope that they will apply their legal conclusions in a manner that doesn’t make too many people say “HUH?”
There’s nothing wrong with people who dislike the RESULT. Law is complex, and it doesn’t often make sense without a lot of study. But when a large number of people disagree with the factual basis of a judge’s ruling, that’s not always a good thing.
Some judges, for example, have exhibited beliefs of what it’s like to be poor, or accused of a crime (or both) which don’t match what the public sees as reality.
Some judges, for example, have exhibited beliefs of what it’s like to be poor, or accused of a crime (or both) which don’t match what the public sees as reality.
Maybe that’s a good reason why a Supreme Court takes the following oath:
“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”
If they treat poor and rich equally before the law and administer justice without respect to persons, then they don’t have to worry about putting themselves in one role or the other.
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1) Disagreeing with the result != disagreeing with the factual basis of the ruling. I doubt 1% of the people opining on any given court ruling have bothered to read it.
2) “Not always a good thing” meaning what? That the court acted wrongly? Or that people are ignorant about the function of the judicial branch?
Re Wittes, it’s the same old argument about how uppity minorities wanted too much too fast, and now they’re going to upset the applecart and then won’t they be sorry.
“Not always a good thing”, from my POV, in that it undermines the support for the judiciary in the population. If people don’t believe in the justice system, they don’t use the justice system. There are other ways of getting things done, but it’s better for society for those ways not be employed. It therefore behooves the justice system to not create/tolerate conditions where the people think their personal outcomes would be better using an alternative method. Private factual universes, not shared with the general public, are one condition that alienates the people from the system.
In plain English, the courts shouldn’t make unpopular decisions because people will turn to…..something else. Cue ominous background music.
Threats don’t become cuter when you dress them up with words like “behooves”, Robert.
Descriptions of reality aren’t threats. The court system has no divine mandate, and could be replaced or reformed. Any system that perpetually aggravates the population, eventually will be, in a reasonably democratic nation.
. . . which is an argument for judicial activism. The courts should find the opinion that will piss people off less then try to come up with a legal rationale for it.
Ah, my error. That wasn’t a threat, it was a promise. If the judicial branch insists on following its Constitutional mandate rather than bowing to populist-driven judicial activism, HEADS WILL ROLL.
Of course The People can, this being a democracy, amend the Constitution and the laws as they wish to change what the courts are and aren’t allowed to do, through legitimate and existing channels. But that’s not as thrilling as pointing to the jackboots in the closet, is it?
The only person pointing to jackboots is you.
Robert, when you referred to “alternative methods”, I came across to me as a reference to anarchy, martial law, and/or vigilantism, as I think it also did to mythago.
If collapse of peaceful social order, in one direction or the other, wasn’t what you were talking about, then what did you mean by an alternative method to the court system?
It could be anarchy or vigilantism (neither of which are particularly jackbooted; “jackboot” basically means popular executive fascism), or it could be the adaptation of private justice systems, or it could be a weakening of the power of the judiciary, perhaps by increasing its subordination to the legislative branch, or it could be a dozen other things. The point I was trying to make, pace Sailorman, was that when the judiciary and the public are operating from different sets of facts, that alienates the public from the system and reduces their willingness to grant it power and trust. Which, if you care about the judiciary as an independent and legitimate part of the political culture, is something that you don’t want to see.
So in order for the judiciary to maintain its independence, it shouldn’t use its independence?
In order for the judiciary to maintain its independence, it shouldn’t go out of its way to be alienated from the population it serves, and should in fact make some effort in the opposite direction.
This is a Right wing trope that I wish liberals would be less eager to parrot. You might as well say the U.S. is not “free” because there are laws against murder.
That’s not to disagree with the ruling. But there’s a right way and a wrong way to defend an independent judiciary.
Out of its way? Are you really meaning to imply that the courts are intentionally making unpopular decisions just to piss people off?
Again, you’re suggesting that courts engage in judicial activism if obeying their Constitutional mandate doesn’t mesh with popular approval. Therefore, to avoid being replaced with some other system, the courts should err on the side of pleasing the greatest number of people.
To sum up: we must destroy the judicial branch in order to save it.
Courts aren’t really as powerful as one might think, and they can still screw up badly.
It took federal troops to enforce Brown vs. Board of Education.
The decision in Worcester v. State of Georgia was basically ignored.
And, of course, the most infamous case of “judicial activism” in United States history is the decision in Dred Scott vs Sandford.
What the “Anti-Judicial Activism” crowd ignore is that we have in our form of government, a system of checks and balances with the three broadly defined branches — Executive, Judicial, Legislative — providing a ‘check’ on the powers of the other. Thus, the ‘power’ of the Judiciary is no less than the power of the Executive or Legislative branches, provided it is properly functioning within the confines of its mission.
The mistaken belief is that the Judiciary lacks the authority to completely strike down a law that was passed by the Legislative branch. Without the authority to do so, there is no effective ‘check’ against the power of the Legislative branch to pass such a law. But it is precisely the authority of the Legislative branch to pass laws which creates for the Judiciary, in our system of checks and balances, the very need to be able to strike down those laws.
It is incorrect to say that the Judiciary is overruling popular laws anyways. They are simply applying the laws that already exist – the constitution is overruling the popular laws, and the judiciary is simply applying the constitution.
I mean, you might be able to make the case that, say, Roe v. Wade was judicial activism (I believe that it was an important step and a good decision, but I always think the legal justification was kind of convoluted), but saying that marriage is included under the equal protection clause is pretty-damned-obvious in the wording of the constitution.
Don’t like it? Amend the constitution, and go down in history as the people who decided that “equal protection” in the constitution was a bad idea.
FCH, in many many years of hanging out with the kind of people who often decry judicial activism, I have never yet met a person who believes what you seem to think they believe. Of course the courts have the power to strike down laws they find unconstitutional; our fourth graders understand that. They (and sometimes I) just think they’re doing a poor job of exercising their authority properly. I don’t think Congress doesn’t have the power to pass laws, when I argue that the “Set Fifty Trillion Dollars On Fire” bill is a stupid bill.
Mythago, in saying “alienated” I was alluding to the point that Sailorman made about the courts working from sets of facts that the general population finds alien or just wrong. Read his comment (way back at #4). Your understanding of what I have said, and your “summing up” of it, are laughably wrong. I am not suggesting that the court system must refrain from using its judgment and instead slavishly follow popular opinion; I am suggesting that the court system use its judgment better. “Stop passing set-fire-to-$50T bills” is not telling Congress to stop using its power, it’s telling Congress to use its power with greater wisdom.
I’ve tried to avoid tying this to the direct case of the California situation because I wanted to argue conceptually, but what the hell. In California, the court has overridden the compromise that the populace and the legislature had come to. (And yes, FCH, they have the power to do that. That isn’t at issue.) In doing so, they have made it likely, although by no means certain, that the populace will push back and override their override – with the result that California will bar gay marriage AND civil unions. (Civil unions, the court just smashed. Gay marriage, the amendment will prohibit.)
If the no-gay-marriage amendment passes, activists and the legislators can, of course, go back and re-institute civil unions *again*, through the same process – but it took years and many many person-hours the first time. What a huge pain in the ass for the activists in California who, I suspect, might have agendas other than “redo what I just spent the last decade doing”. And, if the right-wing elements in California are sufficiently energized by this whole brouhaha, even that recreation may not be possible. It was pretty difficult to do the first time around.
Courts should not slavishly follow the popular will, but they should be cognizant of the fact that the populace does have a will, and does not have to just sit quietly and say “yes, sir” when the court makes a ruling. In the case of CA, the court’s action is likely to lead to a huge net decrease in the civil rights enjoyed by gay Californians. By insisting on a (maybe or probably) unattainable perfect, they have dashed the good out of the hands of millions of people.
It is not a jackbooted threat to notice that that type of boneheaded stupidity is not likely to boost the public’s trust in its judicial institution.
Silenced is foo, I’m not quite sure what you mean by that last comment, but you could easily propose an amendment simply to exempt recognition of same-sex couples as married without having to repeal equal protection across the board.
At this point I’m amazed that some couple from Massachusetts hasn’t, in fact, moved to some other state and then sued for recognition as being married under the “full faith and credit” clause in the Constitution. I figured they’d win and then we’d see a Constitutional amendment banning recognition of same-sex couples as being married quickly be presented in Congress. See who wants to vote up or down on that one ….
And now that I think of it, the “full faith and credit” clause applies to the states but not to the Federal government. So that couple could move to Utah and sue the State of Utah to recognize them as married, but that clause doesn’t seem to permit them to successfully sue, say, the IRS to so recognize them.
Doug S., the Winchester vs. Georgia is worthy of note as well because the Congress colluded with the executive. They could have impeached Jackson to stop him, but they didn’t. We haven’t had an example of anything like that lately, but we could have had such in Massachusetts. If the Great and General Court had refused to change the law, what would the Massachusetts Supreme Court have done?
Wouldn’t work – the Federal DOMA would prevent it. Unfortunately, the DOMA is a fully Constitutional piece of legislation.
Some years ago I read a column by George Will explaining why it was OK for the Supreme Court to strike down Jim Crow in Brown v. Board of Education, even though a majority of Americans might not at that point have favored integrated schools and other public accommodations (certainly large majorities in many states disagreed with the decision), but not OK for courts to rule in favor of gay rights (this was long enough ago that it may not even have been a question of SSM but of discrimination in jobs, housing, etc). I wish I could find it, because it was one of the finest examples of pretzel illogic I ever saw.
Courts make legal decisions, sure–but those frequently involve some sort of moral issue, societal evaluation, ethical question, or the like. Those issues don’t generally have a “right” or “wrong” answer, and are frequently amenable to a certain amount of honest debate.
When the court is significantly out of step with the country on its underlying basis of beliefs, on which said court bases its opinions, problems come up. Lest you think I am arguing this on a conservative basis, i generally see this as a fairly even handed issue, and first became aware of it in a criminal justice/liberal sense.
An easy example might be this: What is “cruel?” What is “unusual?” Those are NOT words with an objectively obvious meaning; they vary by society, by decade; they vary by location. It is simple to imagine a court which could produce a very problematic ruling in that area. Similarly, what is an “unreasonable” search? How far can cops go in making Terry stops; how difficult is it to search people based on minimal premises? Do you get to pull someone over for little reason, and search their car?
There is usually a large gray area. And people will always get pissed off–liberals by conservative judges, conservatives by liberal judges. But i do believe that there are situations (and gay marriage is not one of them, btw) where courts diverge so strongly from the underlying moral and ethical wishes of their population, that it is improper.
Mike writes:
Only in the eyes of the most constitutionally ignorant neo-conservative. It falls somewhere pretty close to thinking that saying the United States is a “Christian Nation” somehow means it’s okay to pass laws favoring Christianity at the expense of other laws doesn’t violate the 1st Amendment.
Only in the eyes of the most constitutionally ignorant neo-conservative.
There must be a lot of those, then. DOMA has been challenged in several state courts and has always been upheld; several DOMA cases have come to the Supreme Court’s attention and have always been declined for review.
You can’t have it both ways. If the courts are the ones who get to decide that the laws aren’t constitutional (and they are, both according to me and according to your own comments above), then when they uphold them, that means they ARE constitutional. There are lots of interesting legal theories about why DOMA doesn’t pass muster; those theories have the same force as all the legal theories about why Roe v. Wade was wrongly decided: zip.
Which, again, is a dancing-around-it way of saying that the courts should reject their duty in favor of pandering to the popular will. What else do you mean by “use its judgment”? (I’m still trying to figure out where you got the idea that courts actually go out of their way to tweak people.)
Yes, the people of California could amend the Constitution. That would suck. However, it would be the legally appropriate response. Asking courts to engage in judicial activism in order to reach legally indefensible, intellectually dishonest but “popular” decisions is laughably inappropriate.
*snort* Whatever. The Federal DOMA was passed under Article IV, which allows it to regulate in what manner intrastate contracts may be applied in interstate matters: […] Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. See also story, end of. Because the statute applies generally to marriage contracts throughout the United States, it is a thoroughly unpleasant but totally legal law.
This doesn’t even make sense grammatically, but I think I get what you’re saying. You’re attributing ideals and motives to me which I don’t possess.
The DOMA is fully legal and Constitutional. That does not mean it is moral or ethical; the CoTUS and law are not morality writ large. Please don’t lump me in with Dominionists because I happen to understand the difference between what is real and what I would wish to be real.
You elided the part that actually makes it unconstitutional: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
All Congress has the power to do is decide the form that proof of marriage should take. They – and the other states – don’t have the power to decide that some California marriages don’t count.
Mike,
A FFaC compliant DoMA can’t dissolve the contract. The marriage contract must continue to exist. From there, the rest of the Constitution can deal with it.
What FFaC permits is for Congress to define the effect of the contract, but not the validity. That the states are trying to define two different classes of the same contract is where the other problems are.
They don’t have the power to decide within California that they don’t count; they do have the power to decide that they won’t count in other States outside of California. The FF&C clause is quite explicit on that account. Contracts are artifacts of State law, hence the Federal ability to determine how they are applied outside of the State in question.
Except that it does allow it to define validity; as contracts are artifacts of State law, their application (i.e., validity) outside of their originating jurisdiction is entirely at the pleasure of Congress; the provisions of Article IV allow for a rule of thumb that contracts shall be honoured outside their originating jurisdictions except where Congress says otherwise, as it has with the DOMA.
Supplemental to that: I’m aware that I may have come across as somewhat snarky in comment #32, for which I apologise; it was unwarranted.