Today will be the closing arguments in the Federal challenge to California’s Proposition 8. By the close of business, Pacific time, the case will be in the hands of Judge Vaughn Walker. It will almost certainly be appealed to the Ninth Circuit and then to the Supreme Court.
In a way, I’m nervous about that, because it raises the stakes for Presidential politics by virtue of politicizing the Supreme Court. But the real damage in that sphere has been done a long time ago, probably in 1973 and certainly by 1987. The Court is so politicized now that there is no going back foreseeable. An aphorism about the Court has been that it handles two kinds of cases: 1) cases dealing with abortion, and 2) everything else. We might have to lump the Prop. 8 appeal into category 1) in terms of its political and judicial treatment.
But on the other hand, the role of the courts, when done right, is to fearlessly adjudicate the rights of individuals and set the proper limits on the exercise of governmental power. That must be done regardless of political convenience. When it is done in a principled and intelligent way, the right result is reached and the legitimacy of the judiciary is enhanced rather than diminished. When done in the wrong way, the result is the entire nation cynically believing that the Court is simply another place where partisan politics is done and all that matters is whether your side wins or loses.
Now if you never read anything else about judicial philosophy, read Damon Root’s assessment of the difference between conservatives and libertarians on matters of Constitutional law. Even if you call yourself a political liberal, the philosophical difference between the idea that the majority exercises presumptive power and the idea that the government’s ability to act at all is circumscribed a priori is an important one to understand. It will help focus your thinking about Prop. 8 and whether or not you agree with the suggestion that it violates the Fourteenth Amendment. It will also illuminate your thoughts about the role of the judiciary in our nation as you deal with the sure-to-be wonky confirmation hearings for Elena Kagan coming up later this summer.
If, like me, you begin your analysis of a Constitutional question of with the question of “has the government demonstrated that this law is a valid exercise of its power?” then you, like me, must be rooting for the plaintiffs in today’s arguments. If, unlike me, your analysis is based on the idea of “has the plaintiff pointed to an impediment to the exercise of the state’s power?” then chances are good that you have difficulty coming up with a principled objection to Prop. 8. (You might have an unprincipled reason to favor that side, of course.) The issue is one of presumption. Legal conservatives read the Tenth Amendment to mean that a state can do pretty much anything it likes, so long as there is no limits on its doing so in the Federal Constitution. Legal libertarians read it to say that the rights are inherent in the people, not in the state, and therefore the state must justify its actions in all cases. (That burden may be a light one.)
What’s important today is to understand the clash of ideas in the courtroom up in San Francisco. The defenders of Prop. 8, Ted Olsen the plaintiff’s attorney in this case, and Judge Walker are all coming from a right-of-center perspective to this disagreement. “Liberal” legal philosophies (not all of which would point to overturning Prop. 8, I’ll point out) are not really in play today, nor are they likely to be at the appellate stages of the case to come. That’s why I point you Readers to Root’s article to get a rich intellectual understanding of what’s at stake.
UPDATE: For a blow-by-blow of the closing arguments, I refer you to Timothy Kincaid of Box Turtle Bulletin and get the video from the Equal Rights Foundation. It looks bad for the defense when they have to rely on the “Evidence? I don’t need no stinking evidence” argument.
