The Court on Gay Marriage

Last week, the U.S. Supreme Court declined to hear appeals from five states that sought to ban gay marriage.  The Court also declined to explain why.  This led supporters of gay marriage to hail the Court's non-action.  But not everyone agreed that this was a good thing.

Critics made the obvious arguments.  According to Professor John C. Eastman, it was “beyond preposterous” for federal courts to define marriage.  This was a question that must be left to the political process.  But what would he make of the Court's view, expressed in 1967, that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"? Or the recognition that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."  The case was Loving v. Virginia.  

I also wonder what he might say about the Supreme Court short-circuiting the political process in Shelby County.  I wonder.

Progressives also were not unanimous in their approval.  One argument in particular caught my attention.  This was from Slate's Dahlia Lithwick:

Regardless of the answers, the court should not be in the business of gingerly surfing public opinion until it’s safe enough to ride that wave into shore. And by waiting (or even talking publicly about thinking about waiting) for the majority of Americans to climb on board before ruling, the court is failing at its most vital task: protecting civil liberties from majorities not inclined to wait. The court hardly becomes more legitimate by suggesting that it will decisively do the right thing once it’s been done. And as of Monday, it’s been done.

 Lithwick is asking the Court to play the role of countermajoritarian hero. But we must ask, has the Court ever played this role in American history?  This is a game I often play with my students: think of a case when the Court in fact played this role, and let's think about how it was possible.  Brown is often the first answer they think of, and it is often the only one.  They don't often think of Brown II, or Naim v. Naim, or Eisenhower and the Little Rock Nine, or the March on Washington, or Freedom Summer.  rather, they think of Brown in a vacuum.  And that is not only misguided, but it is also a mythology of the Court that we should not foster.

Think of this: could we view the Court inevitable reconsideration of the Second Reconstruction as an instance when the Court will be performing "its most vital task"?  I suspect that Professor Eastman would encourage the Court to do precisely that. And if so, what does that tell us about the Court's role?  Could our perceptions be clouded by nothing as crass as whose ox is being gored?

The "New and Improved" -- and make no mistake, just as activist -- Iowa Supreme Court

This week, Iowa Republican Governor Terry Branstad appointed three new members to the state Supreme Court.  From among the nine finalists, the governor selected two state judges and a private attorney.  All were white.  All were male. Notably, these justices are filling the seats vacated by the three justices who were not retained by the Iowa electorate after their controversial ruling on gay marriage.  

To my mind, the biggest question raised by these choices is the complete lack of judicial diversity on the Supreme Court, and what that foretells for the future of the state.  The message is also clear: judicial diversity leads to bad, activist rulings, and when that happens, we must go back to our roots.  To our white, male roots.  

Much can be said about the Governor's choices.  But the one thing that caught my eye was the governor's explanation for his choices: “My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers.” 

These words echo the words of former president George W. Bush, who promised to nominate judges who were "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas." This was, is, and will always be a canard.  This is part of the general mythology to which we have grown accustomed.  What conservative judges do, we call strict constructionism, faithful legal interpretation, and respectful of separation of powers.  In a word, we call it restraint.  Liberal judges, on the other had, are leading us straight to the gates of hell.

This is all so silly yet so powerful at the same time.  If you were crafting a constitutional mythology, I don't think you could do it any better than this.  

The Latest Conservative Turn on Gay Marriage

On today's Times we find out that Barbara Bush, daughter of President George W. Bush, will break ranks with her father and come out in in support of gay marriage.  My first reaction is one of astonishment.  This is not because Ms. Bush will in fact come out against her father on this issue, but because such an announcement is in fact worthy of news coverage.  In case any further proof was needed, this coverage would appear to confirm Kevin Phillips' assessment that our democratic experiment has taken a turn towards aristocracy. Why should anybody care what Ms. Bush thinks on anything?  Note that the article does not explain why her views on this particular issue should carry any special weight, nor does it feel that it has to.    Her name speaks for itself.

But then, if you keep reading, something very interesting crops up.

Barbara Bush is not only famous relative to come out in favor of gay marriage and against the public position of her father.  Meghan McCain, daughter of John McCain, also has come out in support of gay marriage, and so has Mary Cheney.  Laura Bush has also spoken out in support of the issue.

According to the Times, gay advocates point to these splits as proof that support for gay marriage is not a question of partisan affiliation or even family values.  That seems right.  But far more interesting to me is the fact that pseudo-public figures, such as relatives of former presidents, can speak out on sensitive issues in ways that their elected relatives cannot.  If political socialization begins in the home, and political identification tracks family lineage, gay rights advocates have a powerful point.  There is something about this issue that makes it different from others as a question of politics.  

This makes me wonder: what is it that makes this issue so important to the conservative political establishment and its base?  For the life of me, I cannot figure it out.

Constitutional democracy, California-style

“Democracy,” H.L. Mencken wrote, “is the theory that the common people know what they want and deserve to get it good and hard.”  Recent events in California reminded me of this quote.  The ill-fated Sicilian expedition, documented in Book 6 of Thucydides’ History, also came to mind.

Last Tuesday, the California Supreme Court upheld an amendment to the state Constitution approved by a state-wide ballot measure.  The discussion centered on whether this measure was an amendment or a revision to the state Constitution.  If an amendment, the measure would stand; if a revision, it would not.  But this case is far more interesting and important than a mere technical question of state constitutional law would suggest, for at least three reasons.

First, I find it refreshing – intriguing? scary? un-American? – that voters can amend a state constitution by simple majority vote once the measure is placed on the ballot by signatures of only 8% of the voters in the last gubernatorial election.  What kind of pre-commitment is this?  Why bother with a Constitution that can be amended as easily as this?  Also, why judicial review?  As the impeachments of Justices Byrd and Cruz Reynoso demonstrate, voters can not only overturn any decision they want, but they can also impeach the offending justices, maybe even in the same election. “Good and hard” indeed.

Second, think for a moment about the old debates that ultimately led to the enactment of the Voting Rights Act of 1965.  The leading goal of the Act was to facilitate the ability of voters of color to elect representatives of their choice.  The point seems obvious: nobody should lose elections forever; and more tellingly, nobody should lose elections forever when the state is rigging the system so that the same groups always lose. 

Puzzlingly, these teachings are ignored once we shift the conversation to the devices of direct democracy.  As soon as the election results come in, we treat these propositions as legitimate and unassailable exercises of democratic rule.  But what if the same groups always win, the same always lose?  And what if these outcomes are tracked along racial lines?  Taken to its logical resting place, this question applies to any discrete and insular minority. Whether same-sex marriages should be allowed in California might be a difficult question; but the preferences of a state-wide majority of voters, standing alone, should hardly end of the debate.

The third point was made long ago by Publius, in a letter to the people of the state of New York: “It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy.”  This line of argument has an impressive lineage, dating back to ancient times and the teachings of Socrates.  This is also a fitting description of California politics during those times when the voters themselves take charge of policy-making, whether to decide budget questions, gay marriage, illegal immigration, or questions of race.  The implications are breath-taking. 

Just think: Professor Grofman once wondered whether “anyone [could] seriously propose that membership of Congress consist of whoever shows up in Washington on a given day who’s willing to serve (à la the Athenian Assembly) or be replaced by a group of citizens chosen by lot and rotated yearly (à la the Athenian council)?”  If its faith in its citizenry is any indication, it would appear that California could.  Heck, why not?