When Should Judges Defer?

Note – Will and I exchanged a few emails on judicial activism, cultural change, and the courts’ public legitimacy in the wake of the Iowa gay marriage ruling. We’ve published an edited version below:

Will: I’ve enjoyed your and Dave’s posts on originalism – are you familiar with Rosenberg’s “hollow hope” argument against court-instigated progressive change? In a nutshell, Rosenberg argues that the courts are a bad forum for progressive change because they a) frequently incite cultural backlash, b) defuse efforts aimed at legislative and cultural change and c) are generally inhospitable to grassroots activism.

Mark: Sully linked to this piece from Prof. Volokh that I think serves as a very nice linkage between my point on judicial activism and Rosenberg’s empirical argument on judicial capacity for creating change (though not his normative argument). Volokh’s argument is that the Iowa legislature’s decision to include sexuality in its anti-discrimination laws initiated a “slippery slope” by creating an analogue for the Iowa Supreme Court to apply in determining whether the prohibition on SSM violated Equal Protection. Assuming Prof. Volokh is correct, this suggests the following:

Will: I don’t think your larger argument lines up with Rosenberg’s thesis.

a) I’m not sure that the court’s decision reaffirms an actual cultural shift so much as it anticipates the direction in which the culture is moving (i.e. towards greater acceptance of gay marriage).

b) Because we haven’t quite arrived yet, I think Rosenberg would argue that the court decision could actually set back the gay rights movement by defusing grassroots activism aimed at legislative change. I also think the backlash argument is a fairly compelling rejoinder to the notion that the courts are simply ratifying a cultural shift – if anything, the ruling is going to energize a substantial number of people who continue to disagree with the very idea of gay matrimony.

c.) On face, your legal reasoning seems pretty compelling, but I almost think the perception of judicial tyranny is more significant than the actual substance of the ruling . You basically have a large segment of the population who assumes (with some justification) that the democratic process gets regularly screwed over by activist judges. This is a fairly simplistic outlook, but it exists nonetheless, and I think the extent of this sentiment says something about how alienating the judicial process feels to a lot of people. The Iowa ruling is sure to energize cultural traditionalists who might otherwise feel less threatened by legislative change because that option is perceived as democratically legitimate. So even if you’re right on the ruling’s substance, it may have been better from a purely tactical perspective to have waited for the Iowa legislature to act.

Mark: a.  I didn’t mean to suggest that the Court was reaffirming a cultural shift. Instead, I view it as an application of existing law to that cultural shift. This is a subtle distinction, I know, but an important one nonetheless. The strange thing to me as a lawyer about much of the criticism of the Iowa Court’s ruling is that the criticism focuses not on whether the facts create an equal protection violation, but instead on whether equal protection is a worthwhile rubric in the first place; given the importance of equal protection in American law, I find this terribly disturbing.

b. It’s possible/probable that the decision will create backlash. It may also defuse grassroots activism to some extent. But I don’t think this is a legitimate critique of the Court’s decision, because it insists that the court take into account political factors outside of established precedent. To the extent a backlash is created and/or a grassroots campaign is defused, that is not the fault of the judges but is instead a strategic error by the plaintiffs. The judges don’t get to decide when a case is brought – the plaintiffs do.

c. In terms of public perception, you’re certainly correct that perception is going to be as or more important than the substantive reality of the decision. That perception would be wrong, though – I think the better way to characterize the outcry over decisions like this is that it represents the failure of humans to accept that their actions have unintended consequences. The assumption that underlies arguments about the tyranny of the judiciary is that the judiciary is usurping the authority of the legislature; instead, what the judiciary is really doing is applying a long-established body of law to the legislature’s actions. The legislature, however, never thought about the possible implications of those actions vis-a-vis that existing body of law; but it’s wrong to expect the judiciary to correct the legislature’s oversight – the only thing they can/should do is make the legislature deal with the full consequences of its actions.  At that point, it’s up to the legislature to go back to the drawing board and correct its mistakes, if it so desires.

We should remember that a central point of the courts is to make sure that the Constitution/law are enforced consistently, popular will be damned. There may be occasions when the Courts overstep their bounds, but the far bigger problem occurs when the Courts permit an unconstitutional law to stand. The legislature and/or the People can always overturn an unpopular judicial opinion, including one that is legitimately an overreach; but once an unconstitutional law is permitted to stand out of concerns about defying the will of the public, then the constitution is irreparably harmed.

Will: Hmmmm. A few quick points:

a. If the court is applying existing law to a cultural shift, doesn’t that imply the court is reinterpreting the meaning of “equal protection” in light of changing attitudes towards gay couples?

b. My understanding is that the court has a certain amount of discretion when it comes to granting cert. I don’t think courts should actively try to avoid ideological backlash, but they should be cognizant of concerns about democratic legitimacy.

c. I guess my larger point is that the court’s public legitimacy is suffering, so in cases where the justification for court intervention is ambiguous, perhaps it’s best for the court to defer to the legislature. I also think holding the legislature to such a high interpretive standard – in this case, asking them to predict how an equal protection standard will be applied a decade later – is a pretty high bar to clear, perhaps too high.

Now obviously, I agree that the courts need to enforce the constitution, regardless of popularity, but I also believe that the legislature should be given a lot of leeway within that constitutional framework.

Mark: In response:

Will: Here’s my big point:  The courts have a certain amount of judicial capital – i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this erosion of public trust by compromising judicial independence – through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. etc.- thereby undermining the judiciary’s ability to enforce constitutional law.

As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Mark: The question I have, though, is how the courts can reasonably consider issues of political capital. They don’t get to decide when a plaintiff brings a case, and, as in Iowa, if a trial court rules for that plaintiff, then the higher court has no option – either they take the case and decide it on the substantive legal arguments, or they decline the case and let the lower court’s decision stand.  Once they take the case, they simply have no choice but to apply existing law to those facts, whether or not they like the result. That’s not to say there aren’t exceptions to this – but the far bigger danger is often when courts do account for their political capital. When that happens, you get this and various other late-New Deal decisions. Admittedly, a court can always punt with the political question doctrine, but that doctrine is of dubious Constitutional origin, far less expansive than popularly perceived, and often is non-existent on the state level. There are other reasons to be wary of the use of the political question doctrine, but regardless, it’s difficult to see how it would apply in a situation where clear judicial standards have evolved and where the court is being asked to determine the constitutionality of a mere law.