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:
a. The earlier actions of the Iowa legislature laid the groundwork for the Iowa Supreme Court’s decision and indeed may have made that decision inevitable in retrospect – the slippery slope did, in fact slip in this case.
b. The legislative changes, which were presumptively reflective of shifting cultural attitudes towards gays, had the effect of making sexuality a suspect classification.
c. In effectively making sexuality a suspect classification, the equal protection and privileges and immunities clauses of the state constitution became relevant. Unless one wants to argue that both the equal protection clause and the privileges and immunities clause are meaningless historical artifacts that were never intended to take on the meaning that equal protection has taken on, suspect classification status rendered single-sex marriage requirements unconstitutional.
d. In light of the above, the Iowa decision cannot be viewed as either activist or as a judicial attempt to push through major social change. Instead, it must be viewed as an attempt to square settled law with cultural changes.
e. This seems to fit with Rosenberg’s empirical arguments that courts cannot create meaningful change, although I disagree that this leads to the normative conclusion that courts should avoid change. Instead, the real change occurred when gays became accepted as full members of society. Once cultural change occurred, allowance of SSM became simply a matter of time – the relevant democratic decisions were already made, and it was at that point the proper role of the courts to apply pre-existing law to those democratic decisions.
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:
a. The meaning of “equal protection” hasn’t changed. But the legislature, having decided to treat sexuality under the law identically to the way it treats race, gender, and disability, in effect stated that sexuality was a suspect classification. Once it did that, the court had no choice but to decide what kind of suspect classification it was – one requiring intermediate scrutiny or one requiring strict scrutiny. They chose intermediate scrutiny, but even under that lower bar, the statute couldn’t pass muster.
b. Well, the court has discretion granting cert, but if it doesn’t grant cert then the lower court decision is upheld – and the lower court doesn’t have discretion in taking a case. In this case, that would have meant gay marriage would have been legalized by a trial court judge without the state’s highest court weighing in at all.
c. The courts really can’t take public perception of them into account without giving up their independence. For instance, nothing raises the public ire more than when a convicted and clearly guilty violent criminal is set free on a so-called “technicality.” This is often called “results-oriented” or “activist” judging – but it’s absolutely not! The judges don’t want to see the criminal go free any more than the rest of us; but their job is to make sure that the State obeys the Constitution. Ruling in favor of the State in a case just because the criminal is clearly guilty creates an awful precedent that will be applied in cases where the procedural defect convicts an innocent person – and once it makes that ruling, it can’t usually go back and change its mind in a future case just because the person may be innocent.
I also don’t think this is an issue of holding the legislature to a high standard. It’s simply recognizing that “original intent” is impossible to divine (indeed, the champion of originalism, Justice Scalia, is also the foremost critic of “original intent” – he just doesn’t realize that much of what he does is little different). The legislature doesn’t act in a vaccuum, and it can’t be the responsibility of the courts to correct the legislature’s mistakes, no matter how unforseeable those mistakes may have been. To do so would be to read words into the legislation/Constitution that aren’t there, and would in fact be a very real case of “legislating from the bench.”
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.
Will: I think the courts do have some discretion as to what cases they decide. Selectively granting cert comes to mind, though that may not have been possible in this particular case. Also, don’t the courts routinely issue decisions that essentially defer the questions considered to the legislature?
Mark: I do think that for the most part, higher courts tend to avoid granting cert on potentially hot button issues where the lower court has upheld a law – there’s a reason it took until the late 90s for a court to make a ruling one way or another on SSM or civil unions, after all. But once an issue evolves from being taken for granted to being controversial, then trial courts are no longer going to be able to dismiss the issue out of hand, even if it rules against the plaintiffs. At that point, the high court is in a catch-22 – if it declines to hear the case, then it will be seen as ducking a controversial issue, and if it accepts the case, then it has to make a good-faith examination of the issue, which may result in an unpopular decision.