Judicial Review v. “Judicial Activism”

by Todd Hatton

In order to fully consider an issue today, one needs to consider the issue’s provenance.  It’s like waking up one morning and finding an elephant in your flower bed.  Once you’ve realized that a five-and-a-half ton pachyderm is nosing around your begonias, and you’ve given animal control a call, you probably need to start thinking about how it got there.

In that light, I’d like to revisit something you may have heard on The Front Page last week, a piece disparaging “judicial activism.”

The piece objects to this “judicial activism” in three cases: Perry v. Schwarzenegger, Gill v. Office of Personnel Management, and Massachusetts v. United States Department of Health and Human Services.  In Perry, Judge Vaughn Walker is said to have trampled the rights of 7 million Californians who voted in favor of Proposition 8, the measure defining marriage as between one man and one woman that once passed, became Section 7.5 of the Declaration of Rights and part of California’s constitution.

In Gill and Massachusetts, Federal District Judge Joe Tauro struck down 1997’s Defense of Marriage Act, overriding the affirmative votes of 427 congressmen and Bill Clinton’s signature.  This is the evidence that “judicial activism” is subverting the democratic process.

Leaving aside that Judge Tauro is President Nixon’s remaining appointee, and the judge in Perry, Vaughn Walker, was appointed to the bench by the first President, and setting aside that the seven million voters who approved Prop 8 outvoted the opposition by about six-hundred thousand votes, and are a minority of the 15.2 million registered and 23.4 million eligible California voters, we still have the charge that these two judges acted without restraint.  They exceeded their mandate, in effect legislating from the bench.  Or so it would seem.

I once heard that judicial activism is what you call judicial review when you don’t like the verdict.  “And what,” you ask, “is ‘judicial review’?”

In the U.S., it’s the power to review the constitutionality of laws and treaties.  It’s an old English common law concept, but it’s existed in the modern sense since 1803, when the Marshall Court asserted that power in Marbury v. Madison.

Cases like Marbury, however, dealt with federal laws and regulations.  The federal judiciary’s role in determining the constitutionality of state law wouldn’t roll around until 1868 with the 14^th Amendment of the U.S. Constitution and its Equal Protection Clause.

So, let’s say a majority of Kentucky’s eligible voters decide to establish an official state religion.  Then someone decides to sue the Commonwealth and the case goes to the U.S. Supreme Court.  The court rules that the law violates the Establishment Clause of the 1^st Amendment and invalidates it.  A duly enacted law is therefore “subverted.”  It’s perfectly legal, and actually quite democratic.

The democratic process isn’t just taking a vote.  It’s implementing the results and testing the new law or amendment to make sure no one’s losing their rights.  It includes our separation of powers: Congress makes laws, the President enforces laws, and the courts interpret laws.  If you’ll recall, we all learned that somewhere around 8^th grade.

So, these two judges are doing what they were hired to do.  We can disagree with their decisions, but portraying the performance of their duties as somehow undemocratic is factually incorrect.

The next criticism is the “amazing” denial of rights of appeal in the Perry case to traditional marriage advocates.  This is where things get a little complicated.

Prop 8 is now state law, so the state has standing, and a right to appeal the verdict.  But there are also “Intervenor-Defendants” in the case.  They’re individuals or organizations that have asked to be defendants, presumably able to appeal the verdict also.  In Perry, they’re proponents and supporters of Prop 8, and since the state has declined to defend Prop 8, groups like Protect Marriage want to be able to appeal the ruling.

Judge Walker disagreed, saying since they and the others aren’t harmed nor helped by the case’s outcome, they have no standing.  If you have no dog in the race, then you can’t argue over who crosses the finish line.

And since Judge Walker is gay and in a committed relationship, ostensibly benefitting from his own ruling, he’s drawn criticism for not recusing himself.  I wonder if similar charges would be leveled against a married, devout Catholic justice who would have something to gain by upholding Prop 8.  On the other hand, the phrase, “avoiding the appearance of impropriety” does leap to mind when considering Walker’s involvement.  Still, when President Reagan first nominated Walker to the federal bench, Representative Nancy Pelosi opposed his nomination saying he was insensitive to gays and to the poor.

The piece concludes with a few less-than-complete statements.  The first is that witness and traditional marriage expert David Blankenhorn’s testimony was “discredited.”  Judge Walker ruled he wasn’t qualified to be an expert witness and his testimony should be given “no weight.”  Why?

Federal Rule of Evidence 702 says “a witness may be qualified as an expert witness ‘by knowledge, skill, experience, training, or education’ and testimony may only be admitted if it ‘is based upon sufficient facts or data’ and ‘is the product of reliable principles and methods.’”  Blankenhorn apparently fails on those counts.  None of his relevant publications have been peer-reviewed, neither of his degrees are in a relevant field, and “his study of the effects of same-sex marriage involved “reading articles and having conversations with people, and trying to be an informed person about it.”

Walker further wrote that Blankenhorn’s concern over same-sex marriage’s “threat” to traditional marriage was undermined by his testimony that the two operated almost identically. Blankenhorn even agreed same-sex couples could “raise” children.

The piece also states Judge Walker “took a swipe at the religious community when he said, ‘Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.’”  But Walker’s statement isn’t conjured out of thin air.  In Perry‘s findings of fact and conclusions of law, he points out that religious belief about homosexuality has motivated at least some of the discrimination and violence against homosexuals for years.

The piece says Walker’s actions were so “egregious that the reliably liberal 9^th U.S. Circuit Court of Appeals put a hold on Walker’s ruling until December…”  Actually, the Intervenor-Defendants filed a notice of appeal, Walker cast doubt on their right to do so, and now the Circuit Court wants to hear arguments to settle the point of law this December.

The piece does ask three pertinent questions.  “Why vote if one judge can cancel the vote of seven million people?”  My response is: Why act as if this is something out of the ordinary?  We’ve been doing this since 1803, and in light of, say, Brown v. Board of Education, even asking the question sounds self-serving.

“Why contribute to a cause if it’s likely to be defeated in the court?”  Ask Roswell Field, Dred Scott’s pro bono attorney.

And lastly, “Why care?”  Democracy means participation, engagement, and oversight.  The key is knowledge.  Alexander Hamilton wrote of the dangers of voting out of ignorance, and it’s still a concern.  Democracy functions best when everyone has all the facts, no matter how uncomfortable those facts are.  This dispassionate consideration may be a far-off ideal, but in a country founded on such ideals, we do need to make the attempt.  Failing that, we should at least know how the parts of our democracy actually work.