Monday, May 17, 2010

It's Only "Activism" If You Disagree

One of the favorite get-out-the-vote techniques among conservatives is the question of the appointment of judges. The reasoning has been that conservative judges are less likely to "legislate from the bench."

My understanding of this phrase is that courts, at any level, will not write laws, but merely rule on whether or not certain laws are constitutional. This is why California's high court began allowing marriage between gay couples (18 months ago now?) despite a referendum against them passed by the people the previous year. The court ruled that the law was inherently discriminatory and that, as such, was in violation of the California State Constitution. Voters responded with a stronger referendum amending the constitution itself. The Court then had to reverse its decision and now marriages between gay couples cannot be performed in California either by law, or by mandate. Of course, it is only a matter of time before a case goes through enough appeals courts to ask the Supreme Court whether or not laws regarding marriage between people of the same sex are in violation of the federal Constitution.

Can you see the difficulty? My own reading of the Constitution makes it clear to me that the states are allowed the ability to regulate laws regarding marriage, because it is not a power specifically given to the feds. However, the Constitution also states in Article IV that, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Marriage, being a public act with a public record should therefore be valid from state to state, like a driver's license, right? But what about the law in Utah, dating from the mid-nineties (I was on the floor when it passed) that no marriage would be recognized in that state unless it was between two people of opposite sexes? Similar laws exist in many other states.

The controversy and lawsuits on both sides make it a given that a case regarding the legality of marriage between homosexuals will make it to the Supreme Court in the next few years. There is little precedent here. State sodomy laws were struck down by the High Court nearly a decade ago based on the "right to privacy" that formed the basis of the Roe v. Wade abortion decision. But marriage is different--marriage is inherently public. People get married in order to publicly declare their commitment to one another; to give legitimacy to their relationship and to their children.

I've gotten sidetracked. This post wasn't meant to be about the issue of "gay marriage." I treated that at some length last summer. I merely use the complexity of the issue to illustrate a point about the Court.

It is this: People of conservative values have worked very hard in the last generation to ensure the election of public officials who will appoint conservative judges with the end goal of helping to preserve laws that maintain some level of public morality. On its surface this seems like a very worthwhile thing. However, it has been mentioned here on more than one occasion, that government will often create a set of laws hoping for a certain outcome, but there are other, unintended, consequences that come along as well.

Conservative judges don't just rule on "values" types issues--abortion, marriage, rights of churches, etc. They also tend to rule favorably on other things--torture, political breaks for big business, broad gun laws, etc. . . . things that a person vehemently opposed to abortion might also dislike. The courts have become as politically extreme as the politicians--when most Americans count themselves as somewhere in the middle.

No where is this more telling than in the Supreme Court decision that came down late last year regarding campaign finance reform. Here is a description:

"Most notoriously, Congress passed the McCain-Feingold campaign-finance bill, which President Bush signed into law; earlier this year, in a decision by Anthony M. Kennedy, the Court eviscerated that legislation and decreed that corporations have the right to spend unlimited funds to elect the candidates of their choice. In that case, known as Citizens United, the majority also reversed two recent Court decisions."

Stevens, the Justice who will soon retire, wrote a scathing descent in the case. His anger was based primarily on how broad the ruling was. He felt that the majority could have easily ruled in favor of the particular corporation in question, without applying broad Bill of Rights-type protection to a company and overturning precedent. The court, if it had truly been outside the political system should have ruled on the case without overturning the bi-partisan legislation that took years to pass.

The above referenced article continued, "[Chief Justice] Roberts and his allies, like the conservatives of seventy years ago, profess to believe in judicial restraint (the opposite of activism) and respect for precedent, but their actions belie their supposed values."

The "seventy years ago" refers to the conservative court that was seated when Franklin D Roosevelt came to office. Limited government proponents from California to Maine declared war on the New Deal by filing law suit after law suit, hoping that at least ONE would find its way to a friendly court who would then gut the New Deal and banking reform. Longevity won out: FDR ultimately appointed eight judges during his 3 1/4 terms, effectively ensuring that his particular vision of government would last a very long time.

Whether or not this is a good thing depends entirely on whether you see FDR as one of the finest presidents we ever had or if he started our country on a collision course with socialism. History repeats itself: President Obama was elected in a time of financial crisis, to a country already at war on two fronts (instead of later, as in FDR's time), high unemployment, in a razor thin election and with courts unfriendly to his agenda. Unlike that time, he is also faced with real-time reactions to his speeches, pundits with more sway than reporters, and comments "published" with every single news article on the web.

Like the conservatives at the time of the New Deal, our modern Republicans have also sworn to repeal Health Care (and whatever else might come out of this administration). The irony is that the more moderate Republican party of Bush Senior and the early Clinton years proposed a health care bill in essence very much like the one that just passed--back then it was the Democrats who screwed up. They were pushing so hard for a nationalized system they didn't see what was being offered as a good compromise. Now the most conservative Republicans are pushing so hard for what? A complete dismantling of government? that they can't see that what they are being offered IS a compromise.

What lessons will we take from history? Will the current Supreme Court foil the most progressive political agenda in a generation? And who ultimately will benefit/suffer if it does?


Sherry said...

You ask such good questions and state things so well. Eric and I were just discussing the other day the ups and downs of liberal verses conservative Supreme Court justices. I've been really disappointed in some of the more recent decisions, especially ones made in favor of corporations. But will I appreciate the conservative nature of the judges in other areas? And is it worth it to have a morally conservative court if it means they are conservative all around?

Science Teacher Mommy said...

Prior to the birth of my first baby I asked an environmentally-conscious friend if she cloth diapered. No, she informed me, she was more interested in spending time with her children than in doing laundry, but that if I wanted her name, she had a friend who "cloth diapered, nursed on demand, shared a family bed, was vegan and home-schooled."

Wait a minute!!??? Because I was interested in cloth diapering, I suddenly had to home school and stop eating meat to find like-minded mothers? I think politics are the same. You mean, if I am anti-abortion then I have to support my "neighbor" in his desire to openly carry a weapon in my local supermarket??? Or because I believe the Savior has expectations when it comes to the commandments, I must automatically reject any church who supports programs aimed at social justice?

You are right on in your comment Sherry: my question is about whether or not it is worth it, and just what types of issues you consider to be "moral" issues. The answer will be different for everyone.

mstanger said...

Don't have a lot of time today, but I would add that a country which adopts a common law system (as opposed to a civil law system) like we have is not in a very good position to complaint about judicial activism/legislating from the bench, because the system itself requires just that.

Science Teacher Mommy said...

MStanger--as the resident attorney, now you HAVE to come back here when you have more time and try to educate us all a little bit better.

mstanger said...

Common law systems allow for the law to be developed by judges through the decisions of courts. Almost all countries with English heritage are common law systems. Common law countries may still have legislatures and statutes, but those statutes are typically of general application and still will require interpretation by the courts to put flesh on the bones of the statute.

By contrast, in civil law jurisdictions (the legal tradition that prevails in most countries with French or Latin ties), judicial precedent is given less weight, and scholarly literature is given more. For example, the Napoleonic code expressly forbade French judges from pronouncing general principles of law.

In civil law jurisdictions, the statute books tend to be thicker, and the legislatures meet full time to make sure the codes are robust enough to address every potential factual wrinkle.

Consider, for instance, H.L.A. Hart's famous "No Vehicles May be Taken Into the Park," hypothetical - which posits that in a certain hypothetical park, someone had posted a sign, in accordance with a city ordinance, that said, "No Vehicles May be Taken Into the Park." Seems, at first glance, to be a remarkably easy statute to interpret, but its application becomes stickier when put to some interesting tests. For instance, does the law apply to:

* A war memorial which includes a military jeep placed on a pedestal
* A riding lawnmower
* A motorized wheelchair
* A nonmotorized wheelchair
* A bicycle
* A baby stroller
* A child's wagon

A common law judge would have no problem addressing this question with the ordinance written as above. However, in a civil law jurisdiction you would expect the code to define "vehicle" by enumerating the types of vehicles that were covered by the statute.

Judge-made common law operated as the primary source of law for several hundred years, before British Parliament even acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 1100s, courts have had parallel and co-equal authority to make law. Therefore, "legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution. There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable.

Of course, the U.S. Congress has been very busy over the years, as have the federal agencies in filling up the CFR with volumes of regulations, so it is naive to say we have a strictly common law system nowadays, but common law still rules the day in most of the subject matters covered in the first year of law school, i.e., contracts, property, torts. Most first year law students never even read a statute, it's all caselaw, including old English cases that are foundational for certain rules of law.

Science Teacher Mommy said...

So my understanding, as generally applied to the post is this:

Because it is a system of checks and balances, the legislature can make laws, but it is up to the court to decide if such laws are within the framework of The Law. If the constitutionality is called into question of a certain statue, then Congress can re-write the law. The written decisions on the cases can help the legislative branch craft better, more constitutional laws.

I know that some of the conservative arguments against the passage of the ERA in the late 70's was that the deceptively simple language of the amendment would have created problem after problem--from the question of women being drafted into the military, to addressing fault and custody in divorce cases. A law meant to give women equal rights under the law might have instead been used time and again to erase traditional protections that can come with gender roles. Your vehicles in the park example illustrates just how complicated law can become in a pluralistic society and large population.

DennyR_Guari佳穎 said...


mstanger said...

You've got it in part. One role of the courts is to check the legislature on constitutionality, but beyond that, courts can and do announce rules of law independent of the legislature, particularly in those areas set forth above (contracts, property, tort).

This can be particularly true with respect to equity. For example, the Utah Supreme Court recently announced a pretty expansive rule for the tort of intentional infliction of emotional distress, where the statute of limitations had been four years.

The question before the court was what to do when some acts fell outside the statute of limitations and some inside. In this particular case, the bad acts alleged by the supervisor spanned twenty years. The court essentially adopted a "continuing violation" analysis and said as long as one of the bad acts falls within the limitations period, you can sue on all of them. This decision is a really big deal, a significant change in the law, accomplished completely by a court, and wasn't grounded in the constitution.

Science Teacher Mommy said...

Does the law then have to change in response? Will it be up to the legislature to "fix" the law to match the decision when they re-convene? Or is the precedent enough?

When you say "equity" do you mean like Brown v. Board of Education? Are we talking about issues where fringe/minority groups are discriminated against?

mstanger said...

The law could be changed by the legislature, but it is unlikely, as the Statute of Limitations itself hasn't really been changed. It has just had an equitable gloss placed on it that allows for extension of the statute of limitations in certain cases.

Historically there were two types of courts in England, Courts of Law and Courts of Equity, each with competing powers, the law courts solely the province of the crown, and the Courts of Law (or Courts of Chancery) having an ecclesiastical bent (many of the Chancellors were clergymen--one of the most famous, who helped establish the courts of equity's decisions as having precedential value, was Thomas More). The biggest difference between the courts was the nature of the remedies they could grant to an aggrieved litigant. Whereas the Courts of Law were generally limited to an award of monetary damages, the Courts of Equity could actually order people around, i.e., grant an injunction against some unlawful act. The two types of courts became very competitive, to the point where the Chancery courts started to enjoin enforcement of judgments entered by the Courts of Law, until finally Sir Francis Bacon, then King James' AG, annouced that in the case of a conflict between law and equity, equity would prevail. Eventually it became obvious that the devision betwen the two courts made little sense, and the courts were merged. This is true in most jurisdictions in the U.S., including the federal courts, where Article III provides ". . .The judicial Power shall extend to all Cases, in Law and Equity. . ."

The tolling or extension of a statute of limitations is an equitable concept--it allows claims to go forward that would be barred by a purely legal reading of the statute.

And no, Brown v. Board isn't really a case where equity is the driving force--that was a constitutional case, and arises out of the right of judicial review created by Marbury v. Madison.

Science Teacher Mommy said...

Uh . . .

Now I'm totally sticking to science teaching.