Prop 8, and Why I Don’t Have an Opinion on Sotomayor
May 26th, 2009 by Nick SaintAs was widely expected, California’s Supreme Court has upheld Proposition 8, which amended the state’s constitution to ban gay marriage, but held that existing gay marriages were still legally valid. Here are two reactions that sum up why I find constitutional law so depressing. First, John Culhane:
Yet I’m overcome by a profound sense of grief. The courts are supposed to be on the side of justice and protection of the rights of minorities. This time, the California Supreme Court — admittedly with precedential justification — blinked.
They blinked! Now, we all know from our dear friend Sarah Palin that blinking is a terrible thing to do, but I’m at a loss as to what constitutes judicial blinking. Culhane notes that he hasn’t read the decision yet, and legal analysis will follow. But he already knows the court did wrong. Not based on the merits of the case, mind you, but because courts are supposed to stick up for minorities. This man is a law professor.
Now, here’s Maggie Gallagher, who is thrilled, because she doesn’t like gay people, but cautious, because she doesn’t like Californians or judges either:
Six to one. Even in California there is only one justice willing to strip 7 million voters of their core civil right, expressly guaranteed, to amend their own constitution. I should be grateful, right?
Amending one’s constitution by a direct majority vote of the electorate is a core civil right? That’s bad news for anyone who lives in, say, the United States of America where no such right exists. True, Californians are expressly granted that right in regards to their Constitution. But the bar for revising the Constitution is different. The legality of Prop 8 comes down to whether it constitutes and amendment or a revision. Perhaps Gallagher is aware of this, but the argument she actually puts forward is that amending constitutions is a core civil right. Neat.
For what it’s worth, ‘revision’ - as opposed to ‘amendment’ - refers to a “substantial alteration of the entire constitution rather than to a less extensive change in one or more of its provisions.” That’s pretty vague, but it’s as good as it gets. You might think that the treatment of marriage is pretty obviously just a set of provisions within the document. On the other hand, you might think changing the Constitution froma document that doesn’t draw distinctions between the union of men and women and the union of men and men or women and women to one that does is a pretty substantial, overarching disaster. I’m not really sure, but I am sure that just about nobody cares.
Which is fine, so far as it goes. I’m not wild about giving practically unlimited legislative authority to unelected lawyers, but it’s a system that’s worked well enough for us so far, and it’s not going anywhere. What is frustrating is the near-universal denial about what is going on. As far as I can tell, these three things are true of almost everyone:
1.) They believe that legislators should interpret the law, rather than read into it what they want. ‘Legislating from the bench’ is a bad thing.
2.) The right decision for the courts to make on the major Constitutional issues of contention (abortion, affirmative action, gay rights, abortion, abortion, etc.) is - happily! - the decision whose outcome lines up most closely with what they think the law should be.
3.) They have absolutely no idea what the legal arguments on which these questions balance are. Not a clue. There are core, Constitutionally guarunteed rights that people are certain are in there, but they wouldn’t know what Article to open to to find them.
This is a fairly ludicrous combination, but I find it to be true even of most well-educated people. There are some differences of degree, especially with regard to item 1. Conservatives will talk about strict, literal interpretations, whereas liberals are generally more happy with talk about ‘the spirit of the law’, whatever that might be. But this is nonsense. Conservatives want the courts to do conservative things and liberals want them to do liberal things. How many conservatives had to look at precedents on the distinction between ‘amendment’ and ‘revision’ in Californian Constitutional Law?
There are some lefties - especially younger ones, it seems to me - who are pretty openly happy about saying they think Justices should make stuff up to justify decisions that will help people. But for the most part, conversation about the Supreme Court is located firmly within a collective fantasy about what it does. And it hurts my head.
On the other hand, I note with some satisfaction that Sotomayor is - according to our president, anyway - a life-long Yankees fan. So her heart is in the right place. And that’s what matters, isn’t it?
May 27th, 2009 at 12:24 am
Your vituperative post (”this man is a law professor”) overlooks the possibility that I’d read and digested the briefs, heard the three hours of oral argument, and understood the legal issues on both sides before the ruling was handed down. In fact, though, all of these things are true. My reaction was based on what I knew the court to have done, and I had a pretty good sense of the reasons it might have given for doing so. Mostly, I was right. (I’ve since done a sort of long legal analysis, but one geared for the “lay” audience.)
Admittedly, I could have been clearer about what I meant by “blinking”; it’s not surprising you were at a loss. What I meant, and should have conveyed more clearly, is that the court, with at least a couple of key justices soon up for retention, was intimidated by the populist rhetoric to the extent that its judgment was occluded; a judgment that I thought should have gone the other way, pretty much along the lines expressed in Justice Moreno’s dissent.