Thursday, June 27, 2013

When Roberts and Scalia are wrong and Kennedy is right

Unlike many conservatives, I am not upset about the ruling on DOMA yesterday. But what does have my really bothered and puts me in the position I was last year this time of being ticked at John Roberts and cheering on Anthony Kennedy (I know - my entire being is shaken up by this) is Roberts' ruling dismissing the California Prop 8 case for lack of standing.

We now seem to be in the situation when a majority of the electorate in a state can pass a proposition, but if the state's politicians don't like that proposition, they can refuse to defend it in the federal courts and, according to Roberts, no one has the standing to defend a law enacted under a state's legal procedures for people to enact a piece of legislation through the referendum process. This is truly threatening to the whole idea that people can have some say in their state's laws if they don't approve of how their elected politicians are handling the state.

John Fund has a good summary of the dangers of the Supreme Court's decision yesterday.
In California, the initiative process was started in 1911 specifically to pass laws that the governor, other state officials, and the legislature didn’t want to pass. As Justice Anthony Kennedy, who is from California, points out in his dissent to the Roberts opinion: “The initiative system ‘grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.’”

Well, that belief will now reassert itself in the wake of Roberts’s opinion.
Justice Kennedy is more attuned to the dangers to democracy the majority decision poses than John Roberts.
Justice Kennedy said during oral argument in the Prop 8 case last March that not granting standing to the proponents of Prop 8 in federal court would have dangerous implications, what he called “a one-way ratchet.” All state officials have to do is refuse to defend a law passed by the people, watch as those seeking to overturn the law go judge-shopping (Prop 8 opponents found a gay judge in San Francisco who did not disclose his sexual orientation), and then watch the proponents of the initiative lose in federal court because they “lack standing” to represent the law they wrote.

Justice Kennedy, in his dissent from the majority, warned that “the Court’s decision also has implications for the 26 other states that have an initiative or popular referendum system, and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.” Kevin Drum, a blogger for the liberal Mother Jones magazine, notes that he is in favor of gay marriage, but that the Supreme Court’s “gutting” of the people’s right to defend their own initiatives “has neither the flavor of justice nor of democratic governance.”
As Kennedy points out in his dissent, the very reason why people resort to the initiative process is to get around what their elected officials have done or are refusing to do. And now those very elected officials can circumvent the entire initiative simply by refusing to defend it when it is challenged in federal court. Kennedy cites statistics that 185 of the 455 initiatives approved in just five states over the past century were challenged in court.
There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon
litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district
court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, see, e.g., Allen v. Wright, 468 U. S. 737, 750–752 (1984), here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election....

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.
The state of California as well as 25 other states have created the initiative process in order to give the people some power to enact provisions that the political elites don't like. This is something that everyone who cares about democracy to be concerned about regardless of what anyone might care about Proposition 8. One day it could be an initiative backed by liberals that the state's leaders decide not to defend. Just as President Obama and Eric Holder created a bad precedent by refusing to defend a federal law that had been passed by Congress and signed by a president (Bill Clinton in the case of DOMA), these are precedents that could come back to bite liberals one day if a conservative is in power and decides not to defend liberal initiatives or laws.