More Progeny of the Lawrence Decision

More Progeny of the Lawrence Decision

I've previously mentioned how the Lawrence v. Texas (2003) decision (based on false history) produced a number of lawsuits and decisions that pretty well confirmed Justice Scalia's concern that it would largely destroy laws that reflect any sort of notion of sexual morality. In some cases, I find the laws in question silly or stupid--but they are certainly Constitutional. In other cases, the laws being challenged are, I would say, pretty useful laws to have on the books, such as the law against adultery and a law against soliciting sex in public restrooms. Oh yes: and this Oregon law intended to protect the mentally defective from being taken advantage of sexually.

Now, the 9th Circuit has decided that the military's "Don't Ask, Don't Tell" rule should be reviewed based on the heightened scrutiny standard, not the rational basis standard of review. In practice, this means that it is substantially more difficult for the military to discharge homosexuals from the military.

I have been somewhat ambivalent about "Don't Ask, Don't Tell." I know that there are many homosexuals who are serving in our armed forces and doing a fine job. The plaintiff in this case, Major Margaret Witt, sounds like one of those examples. Most of them keep their sexuality private--and it sounds like Maj. Witt was "outed" by a former lover. (Or perhaps this is all an elaborate test case.)

At the same time, as I discussed near the end of this posting, our military developed this anti-homosexual policy in relatively recent times--and the incident that the Wall Street Journal article I quote describes is one that, to put it bluntly, seems to be pretty common among homosexual men--the use of power to coerce sexual compliance from straight men. (And yes, there's definitely a problem with straight men using power against women in similar situations.) There are times that forcing homosexuals to be discreet about their orientation has some positive benefits--at least, it restrains some of the more outrageous behavior.

Lawrence has opened up a can of worms, and with the increasing acceleration down the slippery slope, it appears that the courts will impose full equality for homosexuals in very short order--followed by full equality for polygamists and pedophiles.

The bigger problem, unfortunately, is the entire notion of "standards of review." As Chief Justice Roberts pointed out during the oral arguments for the Heller case, this ladder of "rational basis," "heightened scrutiny," and "strict scrutiny" is not in the Constitution, and is actually of very recent origin.

My reading of how this standards of review idea came about is that at least into the twentieth century, the courts recognized one standard of review: did the federal or state constitutions prohibit a certain legislative action or not? If Congress or a state legislature was prohibited from action X, then they could not take action X. By the 1960s, however, judges were very liberal, and recognized that if they used this categorical prohibition model, then there would be very limited opportunities for the courts to pick and choose which laws to allow, and which to strike down.

This "standards of review" approach gave the courts a series of tools by which they could pick and choose which laws they could strike down and which they could uphold. When you go back and start reading the various Supreme Court decisions on this, you will quickly find that there is no clearly stated model for "standards of review," and in many of these cases, the notion of "standard of review" is clearly something that has been read back into the decision--the notion of "standard of review" is at best implied in these decisions.

I was starting to work on a law review paper about this, but it is hard to get much enthusiasm up for a careful analysis of what is fundamentally a dishonest approach to Constitutional law.

For Those Unclear Who Is Supposed To Run Things

Orin Kerr at Volokh Conspiracy quotes from a recent book review by 9th Circus Court of Appeals Judge Stephen Reinhardt--among America's most liberal judges, married to the director of the ACLU's Southern California
coven chapter.
Reinhardt is the judge responsible for the Harper decision that free speech in schools, which has generally been allowed since the Tinker v. Des Moines School District (1969) decision, only applies to pro-homosexual agitation--but not to opposition to it. (Except, of course, when Reinhardt feels like free speech takes precedence.)

And Reinhardt, as you might expect, cites decisions that demolish his argument on his gun control with no apparent awareness or concern. And when someone pointed out that Reinhardt cited Bellesiles's fraudulent work to support his claim in an opinion--he just replaced the reference to Bellesiles with the footnote that Bellesiles had used. But Reinhardt didn't bother to see if the cited source actually said what he and Bellesiles claimed that it did.

So what did Judge Reinhardt have to say that has Professor Kerr and me upset? I found the quote so disturbingly honest in its elitist tyranny that I thought it best to verify that Professor Kerr didn't misread it. Unfortunately, he did not. From Stephen Reinhardt, "Weakening the Bill of Rights: A Victory for Terrorism," Michigan Law Review 106:963, 973:

I feel more confident in judges than in elected officials safeguarding our constitutional liberties. But I would feel even better were there some Warrens, Brennans, Marshalls, Douglases, Blackmuns, or even more Stevenses currently making the decisions that will determine the nature of our rights and freedoms—and indeed the nature of our society—for years to come. [emphasis added]

I can somewhat forgive the remark about trusting judges more than elected officials. The judiciary does serve an important role in checking popular enthusiasms when they run contrary to the Constitution. But what I have highlighted above--about determing "the nature of our society" is a frighteningly power-mad view of the judiciary's function and authority. Instead of Plato's philosopher-kings, I guess we get philosopher-judges instead. Someone seems to be unaware that, "Here, the people rule."

The People Just Aren't Smart Enough, I Guess

An astonishing admission that appeared in the May 25, 2007 Idaho Statesman:

Gov. Butch Otter will pick two Idaho Supreme Court justices this summer.

Justice Linda Copple Trout will join Chief Justice Gerald Schroeder in retiring before her term ends so her successor can be appointed by Otter, not chosen by voters.

Trout, 55, said Thursday that she will retire Aug. 31 after more than 25 years as an Idaho judge, 15 on the Supreme Court. She said she decided after her last election that she didn't have the energy for another campaign and she is more comfortable having the Idaho Judicial Council screen possible successors.

"There are a lot of problems with the system, but the biggest problem is people don't know how to make a choice on who would make a good judge," Trout said. "I want to give enough opportunity for my successor to get in there and get some experience and let people see them and their work product before they run for the seat."

Maybe she should have revised the state constitution while she was at it to abolish election of legislators, too. The people probably don't know how to make a choice on good legislators, either.

Now, if we were starting from scratch on writing a state constitution, I could see an argument for debating the merits of appointing judges vs. popular election. The U.S. Constitution provides for appointment of judges who enjoy lifetime tenure (with a few exceptions). If judges were occupying the rather limited role envisioned by the Framers, there might be a strong argument that elitism would be a counterbalance to the risks of runaway democracy. But Justice Trout isn't debating this before a state constitutional convention. She is engaged in a sleight of hand maneuver to subvert the clear intent of the Idaho Constitution--that the voters pick justices. See Art. V, sec. 6 of the Idaho Constitution:

The justices of the Supreme Court shall be elected by the electors of the state at large.

It is highly inappropriate for the Idaho Chief Justice to intentionally subvert the language of the Idaho Constitution so as to prevent the voters from selecting a new justice.

As I said, if judges engaged in the limited role that the Framers apparently intended, it might not matter so much if they were an appointed elite. But increasingly, judges have become superlegislators, breathing life into the "dead hand of the past" like Frankenstein's monster, to impose their values on the majority with little or no basis in the Constitution and sometimes, as in Lawrence v. Texas (2003), contrary to it. It is therefore all the more important that the people should have a direct voice in selecting someone who may choose to overrule the other elected representatives of the people. After all, as Idaho Constitution, Art. I, sec. 2 points out:

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.

Thanks to Bryan Fischer at Idaho Values Alliance for bringing this astonishingly open statement of judicial elitism to my attention.

An Amusing Questionnaire

Idaho Values Alliance sent out a questionnaire to the nineteen candidates for an open seat on the Idaho Supreme Court, asking them to express "agree" or "disagree" with various statements. I was amused when I saw the questionnaire, because I recognized that most of these statements were taken verbatim from the Idaho Constitution--and it turns out that, according to this press release from the Idaho Values Alliance, that this was the goal--to see which of the candidates agreed with our state constitution, and which did not. (Perhaps more worrisome, to see which candidates even recognized where these phrases came from.)

None of the candidates responded to the questionnaire, apparently out of concern that taking a position might show that they had prejudged issues that might come before them. But how can you call it prejudging an issue to admit that you agree or disagree with the Idaho Constitution? Isn't that what you are supposed to be following when you sit on the Idaho Supreme Court?

UPDATE: Professor Volokh points out that someone might disagree with these provisions of the state constitution, and yet still be willing to follow them in making decisions. I suspect that if any candidate had responded, "I disagree with this provision, but I will follow the Idaho Constitution in making decisions," it would have been a pretty positive sign for that candidate's integrity.