George Will’s recent column defending judicial activism on behalf of individual liberty doesn’t address gay legal equality, but the points he makes are relevant to the issue nevertheless. For instance, Will notes that “America’s defining value is not majority rule but individual liberty. Many judges, however, in practicing what conservatives have unwisely celebrated as ‘judicial restraint,’ have subordinated liberty to majority rule.”
Will is correct in also observing that “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.” Of course, the “judicial restraint” conservatives clamor for is intended to leave in place measures legislatively passed (or instituted via popular referenda) that dictate discrimination, often against gay people.
But judicial restraint is a two-edge sword, and a diminished judiciary also allows liberals to leave unimpaired the worst outrages of the regulatory state. Both left and right, it seems, would sacrifice individual liberty for unrestrained government that serves their particular ideological agenda.
15 Comments for “For a Robust Judiciary, Defending Liberty”
posted by Doug on
“Both left and right, it seems, would sacrifice individual liberty for unrestrained government that serves their particular ideological agenda.”
That’s the most honest thing you have said in this forum, Stephen.
It’s going to get worse and nastier until some way is found to get the lobbyist and money out of politics. How the Supreme Court ever found that money = speech is beyond me.
posted by Houndentenor on
Or that a corporations has the same legal rights as a person. #facepalm
posted by Tom Scharbach on
“Both left and right, it seems, would sacrifice individual liberty for unrestrained government that serves their particular ideological agenda.”
That has certainly been our history, dating back to Marbury v. Madison (1803), and it is why the ACLU is stretched thin defending against both liberal and conservative overreaching.
I am glad that Will puts quotation marks around both “judicial activism” and “judicial restraint” in his article, because both are misnomers that, in and of themselves, dismiss the critical role of courts in protecting the rights of individuals against the excesses and enthusiasms of the majority.
Our founders were deeply distrustful, with good reason, of unbridled and unchecked majority rule. The founders established two branches of the legislature, one elected on a short cycle and the other appointed/elected on a long cycle, to protect against the vagaries of public opinion. The courts are a final check and balance.
Will is correct in also observing that “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will is correct, but narrowly so. The tension between majority rule and the constitutional check imposed by the courts has been going on since Marbury, and disrespect for supremacy of the Constitution has been a hallmark of elected officials for just as long — witness President Jackson’s famous challenge: “John Marshall has made his decision; now let him enforce it!”
posted by Houndentenor on
State’s rights and judicial “activism” are the two arguments that make hypocrites out of both left and right. Stephen is right to call them out on that. Moreover, the AG of Virginia is right not to defend their anti-gay amendment because 1) it’s a waste of taxpayer funds to defend a case that is destined to loose and 2) it’s unconstitutional. Given that far less draconian anti-gay marriage propositions have lost in the courts, this was is certainly a goner. Even by the standards of the 90-00s gay bashing right, this was was exceptionally mean spirited.
posted by Tom Scharbach on
Moreover, the AG of Virginia is right not to defend their anti-gay amendment because 1) it’s a waste of taxpayer funds to defend a case that is destined to loose and 2) it’s unconstitutional.
The social conservative ranters are going nuts, of course, which is funny considering the praise that they heaped on Wisconsin’s Republican AG, J.B. Van Hollen, when he refused to defend Wisconsin’s clearly constitutional Domestic Partnership Act. Absolutely shameless.
posted by Walker on
Who heaped praise on him? I always wondered how that went over.
And did Obama supporters denounce him for not doing his job?
posted by Tom Scharbach on
The usual suspects praised Van Hollen — social conservative anti-marriage groups like Wisconsin Family Action, the FRC and so on — as “principled”, a “defender of traditional marriage” and so on. I think most people saw it for the political horse manure it was.
As for criticism, Governor Doyle issued a statement saying: “The Attorney General’s job is to represent the state and defend state law when there is a good faith defense to be made. His representation should not be based on whether he likes the state law.”
Otherwise, though, there wasn’t a lot of criticism, because it is an accepted fact that the DOJ does not, in some cases, defend state laws.
Governor Doyle noted, in his statement, that he had refused to defend laws he believed were unconstitutional during his tenure as Attorney General, as did Peg Lautenschlager, Democratic AG from 2003 to 2007, who noted that there were a half dozen cases during her tenure in which the Wisconsin DOJ didn’t represent the state because of a belief a law was unconstitutional or there was a conflict of interest.
After Van Hollen refused to defend, Governor Doyle hired outside counsel to defend the law. Fair Wisconsin and Lambda Legal intervened on behalf of six couples who were Domestic Partners and directly affected by the lawsuit.
Governor Walker fired the outside law firm when he became Governor in 2011, and since then Fair Wisconsin and Lambda Legal have defended the case on behalf of the six intervening couples, funded entirely by private donations.
posted by Tom Jefferson III on
George Will’s position on gay rights has shifted some (just looking at his columns).
He wrote a very negative column — back in 1996 — about how wrong the U.S. Supreme Court was to overturn a Colorado amendment which prohibited civil rights laws from including gay people.
More recently, he seems to either avoid saying much about the issue directly.
posted by Houndentenor on
I have always given Will more latitude than most conservative columnists because he penned a line I quote whenever the topic of school prayer comes up…”As long as there are math tests, there will be prayer in the public schools.” He can often be clever when he’s not being such a sourpuss.
posted by Jorge on
Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.
Oh, shot across the bow.
Fine. Keep your robust judiciary. Break majority command. No sense me holding a weak part of a major front.
But judges alone cannot break majority wisdom. Even if the Some State House of Representatives is going psycho.
Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for a regulation — even if the legislature never articulated it. Never mind the absurdity of the fiction that a majority of Louisianans know about, let alone care about, licensing flower arrangers.
mmmm
NO.
That a majority of Louisianans do not know or care about the menace of unlicensed flower arrangers is precisely why we have representative government. It was my own State Senator who said, in support of legislation legalizing same sex marriage:
…And whether you believe it or not, nobody elected me, not even the 99% plurality that I received, elected me to be the moral arbiter of their decision. But they did ask me to provide leadership, and in that leadership, I hope that 50% of the people who called my office said vote no, they will understand that if they pick me as the leader, then they must trust that the decisions that I help to make on this floor are about total rights for all of the people that I serve. Because the 50% who said vote yes, they have a right to expect my protection as well.
I’m sure she object strenuously to using her words to support a level of majoritarianism I am about to suggest, but the flower arranging industry has a right to the state of Louisianna’s protection just as the unlicensed widow does. In the face of the interests that each holds equally, who is responsible for judging between them? How can we decide which is right, if most people do not even understand the flower arranging industry? We elect people, to provide that leadership. That’s how.
I’ll remain a neoconservative, thank you.
posted by Tom Scharbach on
Keep your robust judiciary. Break majority command. No sense me holding a weak part of a major front. But judges alone cannot break majority wisdom.
Courts cannot break majority wisdom. Nor do courts try to do so.
What courts do is draw lines, grounded in the Constitution, beyond which laws and government actions, which presumably reflect majority wisdom, cannot trespass. It is an intellectually difficult task to apply broad Constitutional principles to specific fact situations (look to the religious freedom cases defended by the ACLU as an example), but a task that is essential to the preservation of our freedom. Individual courts in individual decisions do not always get the line right, but over time, through multiples of cases, appeals and decisions, the line is drawn at a point that works.
But, as you point out, drawing Constitutional lines does not “break majority wisdom”.
When Loving was decided in 1967, close to 75% of Americans believed that interracial marriage was unacceptable. The Court’s decision in Loving did not change that — the same percentage thought that interracial marriage was unacceptable the day after the decision as did the day before the decision. That was not the point of the decision. What Loving did was not “break majority wisdom” but instead draw a line about laws prohibiting couples of mixed race from marrying.
So it is with marriage equality.
We are differently situated than mixed-race couples at the time Loving was decided. We have won, little by slowly, a majority of Americans over to our side, as mixed-race couples had not. But it makes no difference.
The Constitutional line will have to be drawn, one way or the other, and it matters not a whit, legally, what the majority of Americans think about us or our relationships, because question presented is not about the “majority wisdom”, but instead about whether the Constitution limits of laws and government action banning same-sex marriage.
posted by Jorge on
Fine. Keep your robust judiciary.
But judges alone cannot break majority wisdom. Even if the Some State House of Representatives is going psycho.
We are differently situated than mixed-race couples at the time Loving was decided. We have won, little by slowly, a majority of Americans over to our side, as mixed-race couples had not. But it makes no difference.
Actually, you just demonstrated why judges cannot break majority wisdom.
posted by Tom Scharbach on
Actually, you just demonstrated why judges cannot break majority wisdom.
That’s what I set out to do. I’m not arguing the point. You’re dead right.
I’m simply saying the “majority wisdom” is not relevant to drawing Constitutional boundaries on the government. Court decisions establishing limits on laws and government action often run contrary to “majority wisdom”. That’s what Courts are supposed to do under our Constitutional system.
That’s why I compared and contrasted Loving with the marriage equality cases. In Loving, the courts ran contrary to “majority wisdom”. In the marriage equality cases, if the courts decide in favor of marriage equality, the courts will be running with “majority wisdom”. If the courts decide against marriage equality, the courts will be deciding against “majority wisdom”. So be it.
Look again at the religious freedom cases I cited in my earlier comment. Do you have any idea what “majority wisdom” might be in most of those cases? I don’t. And yet the courts have decided or will decide the Constitutional boundaries of government attempts to limit religious freedom in each of the cases brought before them for decision.
That’s what courts do, and are supposed to do.
posted by Houndentenor on
You keep using the phrase “majority wisdom” even when presented with case law in which the majority of the public was anything but wise. The reason we have the Supreme Court is to counterbalance an unjust majority trampling over the rights of minorities. Since everyone in some way or another belongs to one or more minorities, I am always surprised when someone can’t see the value in that.
posted by Jorge on
You keep using the phrase “majority wisdom” even when presented with case law in which the majority of the public was anything but wise.
Who appointed you king?
The reason we have the Supreme Court is to counterbalance an unjust majority trampling over the rights of minorities. Since everyone in some way or another belongs to one or more minorities, I am always surprised when someone can’t see the value in that.
I do not understand what gives you the impression I do not see the value in that. Please re-read what I have posted so that you can get more clarity on my position.
There is a value in checks and balances. By definition, the value of any one check is finite.