The California Supreme Court voted 6 to 1 to review legal challenges to Proposition 8. The court may hold a hearing on the lawsuits as early as March.
If the court holds that Proposition 8 was invalid, I predict a huge outcry citing liberal activist judges and how dare judges go against the democratic process.
I also predict there will be zero coverage on the true role of judges in our legal system. This silence will result in this fiction continuing to grow and continuing to be used in the talking points of every Republican candidate for generations to come.
I will let Prof. Erwin Chemerinsky explain it as he will do a better job than I. Prof Chemerinsky is a professor of Constitutional Law at Duke University. He wrote a text book on Constitutional Law that is used by most law students today. I also had the pleasure of meeting him in person at my law school when he represented my law school and some other law schools in FAIR v. Rumsfeld.
Prof. Chemerinsky and Prof. Catherine Fisk wrote an editorial on the role of judges for the USA today back in 2005. You can find it here, or just read below:
“Judges do make law — it’s their job
Misleading and silly slogans about what judges do are dominating the debate about Supreme Court nominee John Roberts.
President Bush and Republican politicians constantly repeat, as a mantra, that Roberts is a desirable choice because he won’t “legislate from the bench” and will merely “apply the law, not make it.”
But every lawyer knows that judges make law — it’s their job. In fact, law students learn in the first semester that almost all tort law (governing accidental injuries), contract law and property law are made by judges. Legislatures did not create these rules; judges did, and they continue to do so when they revise the rules over time.
Indeed, one of the most fundamental doctrines of American law — the authority of courts to declare laws unconstitutional — is entirely made by judges. Nowhere does the text of the Constitution mention the power of judicial review, and it may fairly be debated whether the framers of the Constitution intended to create such a power.
Supreme Court justices must interpret the broadly worded provisions of the Constitution and decide the meaning of vague terms that protect “liberty” or prevent government from the “establishment of religion” or from imposing “cruel and unusual punishment.”
A few examples
For example, more than 60 years ago, the court considered an Oklahoma law that required the sterilization of anyone convicted twice of a felony involving moral turpitude (in that case, the crime was robbery). The court held that the law did not provide equal protection and added that forced sterilization was unconstitutional because the right to procreate is a fundamental aspect of the liberty protected by the Constitution. The justices were “making” the law.
Likewise, in the landmark decision of Brown v. Board of Education, the justices “made” the law in deciding that the equal protection clause prohibited racial segregation in schools and in overruling the infamous decision of Plessy v. Ferguson, which had held the opposite.
Not all judicial lawmaking involves the interpretation of vague constitutional or statutory provisions. Judges sometimes decide that clear legal language means something different than what a layperson might think. The conservative majority of the court has decided that the 11th Amendment, which says that a state may not be sued by citizens of other states, instead creates a wide-ranging doctrine of “sovereign immunity” that nobody can sue the federal or state government, even his own state, in state or federal court. That was judicial lawmaking par excellence, a wholly invented broad principle nowhere mentioned in the Constitution, along with an elaborate set of limitations and exceptions.
‘Roe’ decision
Conservatives point to Roe v. Wade as an example of the court legislating from the bench because the Constitution does not mention privacy. They also decry the set of limitations on the constitutional right to abortion that the court has developed over a series of cases since Roe. But the court’s sovereign immunity decisions are open to the same criticism. The Constitution says no more about sovereign immunity than it does about privacy.
Conservatives are no more willing than liberals to defer to government choices they dislike. Two years ago, conservatives were angry the top court did not declare unconstitutional the University of Michigan Law School’s affirmative action program. That same year, conservatives were outraged the court overturned the Texas law prohibiting private consensual homosexual activity. Let’s face it: Conservatives and liberals believe judges should make law that invalidates undesirable action by elected branches of government. They just disagree about when judges should exercise that power.
Lawyers know that the oft-repeated phrases about judges making law are just slogans. But the quality of public debate is lowered when people insist upon something they know to be false.
We can disagree over court decisions. We should debate the kind of law that John Roberts would make as a member of the country’s most powerful court. But we should do so in a way that accurately reflects what everyone knows about the legal system: Judges do make law and always have.”
So, we see that judges can and do make law. The history of this is actually older than the country itself as this is a direct result of our English roots as this case law often was first ruled on in the middle ages in England.
But what about the case of Proposition 8? It is hard to tell where the court will come out. Despite what the average citizen thinks, courts exercise a lot of restraint when making controversial decisions. This would definitely qualify. A better insight in what the court will be weighing can probably be found in the opening sentence of the Southern Poverty Law Center’s amicus brief on the issue that said “one’s right to life, liberty, and property, to free speech, a free pass, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”, whcih came from the case Board of Education v. Barnette.
Whatever the court decides in March, watch how the media and the right will constantly cite liberal activist judges and how dare judges go against the democratic process. Then think about how the right knows that this is false as most politicians went to law school. Also, remember how the U.S. Supreme Court is currently made up of 7 out of the 9 justices are Republican appointees. This domination of the U.S. Supreme Court by the right is not new. Remember, presidents appoint judges to the Supreme Court and to the lower federal courts. Remember, presidents have been predominately Republican for a long long time. This means that the entire federal court system is dominated by judges appointed by Republicans. Whatever rulings that the Republicans cannot get, it is either the fault of the Republicans for byad appointees or these rulings would have been truly unconstitutional. Remember it is the Republicans that push these wedge issues in order to get your vote. Remember, they have knowingly lied to you.
Now, knowingly do not give them your vote. Now you know how our country works. Do not listen to their talking points. Read and decide, and truly consider when casting votes in the future if someone played an emotional card with you while lying to you in order to get your vote.
January 5th, 2009 by t
Posted in Deep Thoughts, Funny, TV
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