Wednesday, May 27, 2009

Identity Politics and Activist Judges

I'm not sure the juxtaposition of yesterday's decisions in California, the White House, and SCOTUS in a criminal defendant case could be more striking. First, California's Supreme Court upholding the ban on same-sex marriage.

The California Supreme Court upheld a ban on same-sex marriage Tuesday, ratifying a decision made by voters last year. The ruling comes at a time when several state governments have moved in the opposite direction.

The court’s decision does, however, preserve the 18,000 same-sex marriages performed between the justices’ ruling last May that same-sex marriage was constitutionally protected and voters’ passage in November of Proposition 8, which banned it.

The court’s opinion, written by Chief Justice Ronald M. George for a 6-to-1 majority, noted that same-sex couples still had a right to civil unions. Such unions, the opinion said, gives those couples the ability to “choose one’s life partner and enter with that person into a committed, officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage.”
Whatever that means. So in California, same-sex couples can't get married, but instead can have civil unions, unless they were part of the 18,000 couples who married earlier, in which case theirs are not civil unions but actual marriages, in a state that bans gay marriage. Or something.

This is why we don't look to state supreme courts for our judicial picks to U.S. Supreme Court. But it's also an issue the high court will ultimately have to decide, I'm afraid.

Just as the states were carving out various bans prohibiting interracial couples from marrying in the 60's, and which the court declared unconstitutional once and for all in the appropriately named Loving v. Virginia, (1967), so too will the court eventually decide the efficacy of these convoluted, patch-work bans on same-sex marriage. In fact, if you want to know why these bans will eventually fall constitutionally, read the Loving decision. The parallels in discriminatory treatment are strikingly similar.

Speaking of "identity politics," check out the livid reaction by the right yesterday to Obama's elevation of court of appeals judge Sonia Sotomayor to replace Justice David Souter. Says a particularly apoplectic George Will:
[Stuart] Taylor has also noted this from a Sotomayor speech to a Hispanic group: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Says Taylor, "Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: 'I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life' -- and had proceeded to speak of 'inherent physiological or cultural differences.' "
You would think Will, of all people, would be beyond the old "how come there ain't no Miss White America beauty pageants?" type of argument, but most of the criticism over Sotomayor's appointment suggests the same, atavistic, angry tone. It's odd, if you think about it, given conservative's love of the "pull yourself up by your bootstraps" kinds of stories.

Also humorous is the reaction to the vaunted YouTube clip making the rounds in which Sotomayor says "court of appeals is where policy is made.” Anyone who knows anything about how our judicial system works knows that a decision rendered by an appellate court always sets policy via interpretation. The very essence of judicial interpretation is to set policy, be it of a conservative or liberal bent.

In fact, the Supreme Court handed down a decision yesterday which "made policy" and defined the essence of "judicial activism." In a 5-4 decision the court rolled back some of the restrictions put in place 20+ years ago regarding when a defendant can be interrogated without counsel present.

In a 5-to-4 ruling, the court overturned its 1986 opinion in a Michigan case, which forbade the police from interrogating a defendant once he invoked his right to counsel at an arraignment or a similar proceeding.

That 1986 ruling has not only proved “unworkable,” Justice Antonin Scalia wrote for the majority, but its “marginal benefits are dwarfed by its substantial costs” in that some guilty defendants go free. Justice Scalia was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

In an angry dissent, Justice John Paul Stevens, who wrote the 1986 decision, said that contrary to the majority’s assertion, that decision protected “a fundamental right that the court now dishonors.”
I've only scanned through the opinion, but it seems highly unnecessary to toss out these protections when the "substantial cost of some guilty defendants going free" cited by the majority is less than 1% of all criminal suspects hauled in by the police. The decision also "makes policy" by changing the law. Said Stevens in dissent:
"Instead of reversing the decision of the state court by simply answering the question on which we granted certiorari in a unanimous opinion, however, the majority has decided to change the law...paying lip service to the rule of stare decisis."
Conservative justices "changing the law" and "making policy"? Gasp!

As you watch the Sotomayor confirmation hearings shape up over the next several months, keep in mind this simple piece of advice: an "activist judge" is someone you don't agree with.

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