Same-sex marriage: Jerry Brown’s interpretation

Does the California Constitution permit voters to overturn same-sex marriage? Jerry Brown’s interpretation move

California Attorney General Jerry Brown has made a good move in the legal interpretation game over same-sex marriage. In May of 2008, the state Supreme Court held 4-3 that a statute refusing to recognize the marriages was an unconstitutional violation of fundamental rights. In November, 52% of the voters adopted Initiative Proposition 8, overturning the court’s decision by amending the state constitution.  All sides are back in court to litigate the validity of Proposition 8.

The realistic, pragmatic analysis of the litigation would simply ask whether a majority of the justices still believe today what they believed months ago, that recognizing same-sex marriages is a good idea, and why. Let’s be honest: It’s really up to the personal, philosophical and political values of those 4 justices.

But the legal interpretation game requires a Kabuki drama (or is it Gilbert & Sullivan?) instead.  So we get legal briefs about text and history and doctrine and precedent that “require” the court to go this way or that. Here is where Jerry Brown makes his good move in a brief.
To be sure, the Attorney General dutifully puts on the Kabuki mask and talks text, history, doctrine and precedent. But he sheds a good deal of the costume by putting at the heart of the matter a question of philosophy, not philosophy of sexual preference, but philosophy of government. The question is whether a majority of voters may  remove fundamental and inalienable rights from others.  John Locke in the 17th century said no, Thomas Jefferson agreed with Locke in the 18th, and the drafters of the California constitution agreed with Jefferson in the 19th.  It has always seemed to me a sound and important philosophy of government. Few liberals or conservatives disagree with it.  The answer to it affects more than gay rights.

Do at least 4 justices of the California Supreme Court agree with it?  Brown has shown them the way to put themselves on record defending this transcendent philosophy of government.  It should be easy for them.  And a court opinion dealing  straightforwardly with that philosophy of government would be healthier for the commonweal than an opinion parsing precedents. Of course, the Legal Realism analysis must include the fact that Brown is planning to run for Governor in 2010, as is the gay-supported mayor of San Francisco, and the fact that Proposition 8 supporters threaten a recall of justices who fail to uphold it. But Brown has established the high-ground by stating the philosophical issue at stake, and that ground could serve both him and the justices well in any political battles ahead.

I see from the Los Angeles Times that my old friend Gerald Uelmen at Santa Clara University Law School was surprised by Brown’s move.  It “turns constitutional law on its head,” Gerry said, adding that he was unaware of any case law that supported Brown’s theory.  This reminded me that years ago Gerry once complained to me that a court had disregarded the plain text of a statute and wanted to know if I had every heard of such a thing. Only in all those thousands of cases since time immemorial when courts had followed “purpose,” “nature,” or something other than mere “text,” I answered. That was before I had reduced all the moves to a one-page diagram on page 82 of my 2008 book, The Interpretation Game: How Judges and Lawyers Make the Law.  Brown dressed up his move to philosophy by calling it a move to “purpose” and “nature,”  and threw in a lot of case precedents to boot. Gerry ought to applaud it. I know for a fact he’s a big fan of Gilbert & Sullivan.

Let’s fight over judges

The Los Angeles Times published an editorial on April 12, 2008 decrying the “petty warfare between Republicans and Democrats over nominations to the federal courts.” It is a Hatfield-McCoy feud that “has been going on so long that no one is sure when it started,” said the editors, who traced it as far back as 1968 when Republicans blocked Lyndon Johnson’s nomination of Abe Fortas to be chief justice. The Times Board of Editors needs to keep an American history book on the shelf, where they could have traced battles in Congress over judicial nominees back to the administration of George Washington. Anyway, the Times finds this a sorry state of affairs and urges “in the interest of justice” that the Bush nominees now awaiting Senate approval “not be put on hold in the hopes that a Democrat will be elected in November.”

The editorial drew this letter to the editor from yours truly, published April 16:

“The Times’ call for an end to partisan fighting over judicial appointments is noble but naive. Interpretation of law is always, and unavoidably, subjective because of the nature of giving meaning to texts. The judge’s personal and political values always, unavoidably, play a role. A study of all federal court decisions under the National Environmental Policy Act during 2001-2004, for example, revealed that environmentalists won 60% of the time with district judges appointed by a Democratic president but 28% of the time with judges appointed by a Republican. They won only 17% of the time with judges appointed by George W. Bush. Therefore, partisan blockage of judicial nominees in the Senate is entirely proper because we have few other ways to keep these black-robed policymakers accountable to the citizenry.

Robert Benson
Professor of Law”

My letter triggered lively responses from a judge and from a number of my colleages in the law professoriate. The comments came to me by email, and not to this blog, but I will pass some of them on here as comments because they are worthy of a wider audience. I post them under the pen-name Publius, and I withold the authors’ names because I don’t know whether they wish to be publicly identified.

Federal judges and the environment

A new, comprehensive study of all NEPA (National Environmental Policy Act) cases from 2001-2004 shows that federal lower court judges appointed by a Democratic president ruled in favor of the environmental plaintiffs almost 60% of the time, while judges appointed by a Republican ruled for the environmental side only 28% of the time. Judges appointed by President George W. Bush ruled for the environmental side only 17% of the time. At the federal appellate court level, those panels with a majority of judges appointed by a Democratic president ruled pro-environment 58% of the time. In contrast, Republican-majority panels ruled that way only 10% of the time.

The study is on the website of the Environmental Law Institute in Washington, DC, and is titled “Judging NEPA: A Hard Look at Judicial Decision Making Under the National Environmental Policy Act.” Its authors also take note of Professor Cass Sunstein and colleagues’ 2003 empirical study of appellate decisions in several areas, including environmental regulation. Sunstein found ideological voting patterns, moderated by peer group dynamics of the judging panels. He concluded that “the political party of the appointing president is a fairly good predictor of how an individual judge will vote.”

So there again is empirical proof that, as Cardozo said, judges “do not stand aloof” on “chill and distant heights.” He added, “we shall not help the cause of truth by acting and speaking as if they do.”

Bush’s judicial legacy

To the benefit of all of us, most journalists are not fooled by what I call in the book the Old Story of the legal profession, the story that claims judging is an apolitical activity. We get clear-headed evidence of this from David Savage, a legal affairs reporter for the Los Angeles Times, in his “Conservative courts likely Bush legacy,” L.A. Times, January 2, 2008, p. A11. While critics of the Bush Administration have been declaring that Bush’s fiasco in Iraq and scant domestic achievements mean that his presidency will leave no legacy at all, David Savage points out that Bush will at least leave the 294 federal judges he appointed who will likely tilt the courts ideologically to the right for years to come.

Republicans now have a majority of seats on the federal bench, and 60% of the U.S. courts of appeals. None of this is surprising, given that Republican Presidents have ruled more years than Democrats during the lifespan of most judges on the bench today. But it has happened gradually, starting with Nixon and Reagan. It is a slow process to change the political makeup of the federal judiciary, requiring sustained political coalitions in the other two branches over repeated election cycles. And just when the judges have tilted in the direction of the political coalition that put them on the bench, the coalitions usually lose electoral power to their opponents who then begin pushing the makeup of the judiciary the other way. The slowness of the change is the deliberate consequence of the elaborate separation of powers schemes put by the framers into the Constitution to hobble what they viewed as dangerous passions of populist mobs. Conservative populist mobs can be hobbled as well as progressive mobs, of course, but the hobbling structure of the system generally favors government doing nothing (usually more of a conservative value) over doing something (usually more progressive), so the playing field is not a level one for progressives. The federal courts have been conservative during most of the last 200+ years, progressive only during brief periods like the New Deal and the Warren Court eras. Those eras make liberals giddy with hope that judges can be a force for progressive change, but their hope is against the odds of history. Mark Tüshnet has an incisive essay on all this. See, Mark Tushnet, “The Constitution From a Progressive Point of View,” in A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution (Jules Lobel, ed., New York: Monthly Review Press, 1988).

So what’s a liberal, or a conservative, to do in the face of a judiciary tilting in what they see as the wrong ideological direction? Nothing to do but to fight in the political trenches of the system. Both conservatives and liberals will pull the trick of pretending to be above the battle, seeking only to put “well-qualified,” “intelligent” judges with a proper “temperament” on the bench and touting John Roberts’s childish myth that judges are mere umpires. But behind the scenes, they’re busy selecting and lobbying for candidates who share their ideological values, as they should be.

One of the political trenches in which this battle is carried on is the “blue-slip” policy of the Senate Judiciary Committee, requiring both senators of a state to return a blue form indicating approval or disapproval of the President’s nominees before a confirmation hearing can be held. Senate Republicans held up scores of Clinton nominees for years with this device. When Democrats regained a majority after the 2006 elections, they turned the tables. Other interesting trench warfare has developed in California where the two Democratic senators, Boxer and Feinstein, agreed in 2001 with the Bush Administration to take blue-slip recommendations from bi-partisan commissions of three Democratic and three Republican members. Called “Parsky commissions” after Bush’s California money-man and political operative who helped negotiate the deal, the commissions have seen 27 of their nominees approved for federal district judgeships, but have taken fire from both conservatives and liberals disenchanted with some of the selections. That probably means their selections are ideologically radical centrists whose judicial opinions will sit on the fence while the barn burns. Now, Senator Boxer has refused to go along with a Parsky Commission choice for the first time, and this may signal that she is flexing her liberal instincts at the moment that the electoral power of the Republican Party is declining. Boxer rejected nominee Jim Rogan, a former GOP congressman who was instrumental in the House impeachment of President Clinton. A Wall Street Journal column calls Boxer’s position “partisan and petty,” but Boxer points out Rogan had a 100% voting record in Congress from the American Conservative Union, and voted against clean-air and clean-water measures. So, Boxer is just doing the job her constituents elected her to do.