June 26, 2013
John Roberts: Social Reformer
Almost a year ago, June 28th, 2012, when Chief Justice John Roberts shocked the legal world by upholding Obamacare, he offered the rationale that he must bend over backwards to protect the integrity of, and show great deference to, a democratic vote.
But today in Hollingsworth v. Perry (initially Perry v. Schwarzenegger), he must have had some more urgent crusade in mind; because he has just thrown the votes of seven million Californios into the dustbin of historical inevitability. With the stroke of a pen, Roberts has overturned our votes (twice) for traditional marriage.
In fact, he picked up the seven-ten split: With the first collision, he wiped away Proposition 8, which had inconveniently held that "only marriage between a man and a woman is valid or recognized in California;" this got in the way of Progress. And with the rebound, he slickly demolished that very direct democracy of the citizens' initiative, not just in California but in every other state that once had such a mechanism for the citizens to legislate where their elected masters had chosen not to lead them.
And he did all this while never even having to reach the merits of whether the United States Constitution actually requires same-sex marriage, as the plaintiffs contended and the trial judge enthusiastically endorsed: Since nobody in the whole wide world had, or could ever have had, "standing" to defend a law enacted by the California electorate, there was in essence no opportunity for the side of traditional marriage ever to be heard. It's not difficult to win a collusive case where the opposition is bound and gagged.
Technically, Prop. 8 is not dead yet; by ruling that the defenders had no standing from the very beginning, the decision of the Ninth Circuit to strike down Prop. 8 was also swept away. This leaves the marriage law in doubt, since only a ruling by an appellate court or higher is supposed to be able to overturn an initiative. But that's a distinction without a difference; for the lawless administration of Gov. Jerry "Moonbeam" Brown has already given the order to resume issuing marriage licenses for same-sex couples in thirty days.
And since we now know that nobody has standing to defend Prop. 8, it's inevitable that nobody will likewise have any standing to sue to prevent those licenses. The losing side -- rather, the group of individuals who just discovered today that they hadn't even been in the courtroom, and their recollections of district, appellate, and Supreme courts was just a dream -- puts a fine spin on it:
While it is unfortunate that the Court's ruling does not directly resolve questions about the scope of the trial court's order against Prop. 8, we will continue to defend Prop. 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop. 8 unenforceable.
But when those licenses start rolling out, who ya gonna call?
How did this all come about? Plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo were each denied a same-sex marriage license under Prop. 8; they sued the state of California and various officials (Perry v. Schwarzenegger): The United States federal Constitition, they argued, mandated same-sex marriage across the entire nation, "Whether you like it or not" -- as San Francisco Mayor Gavin Newsom, a gay-rights activist, huffed in an anti-Prop. 8 commercial. Apparently, that was what the Framers had intended all along.
In a first, both the liberal Republican Gov. Arnold Schwarzenegger and the leftist Democratic state Attorney General (and former governor) Jerry Brown, the two officials tasked with defending the law of California in court, flagrantly conspired to violate their duty and oath of office, refusing to defend Prop. 8 -- and also refusing to appoint or allow anyone else to defend it, either. The intent was clear: With no defenders, only one side would be heard, and the conspirators would win in a walk.
But the California Supreme Court threw a monkey wrench into the smooth passage of Prop. 8 into genteel désuétude; the authors of the original 2008 citizens' constitutional amendment -- its wording copied exactly from a previous citizens' initiative, 2000's Proposition 22 -- petitioned for, and received permission from the state Supreme Court to defend Prop. 8 in the ensuing trials. Even Judge Vaughn Walker, the federal trial judge, accepted them as defendants, defending the interests of the citizens of California.
And that became John Roberts' target. He put together a strange coalition of three activist liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagen -- and one very conservative justice, Antonin Scalia; all appeared willing to exile the only defenders of the law... and evidently none was much concerned that by striking at the very concept of citizen defenders, they gave an administrative veto to once and future citizens' initiatives: Henceforth, all an administration need do to overturn a citizens' initiative, here or anywhere else that has the now-suspect concept, is to induce a friendly catspaw to file a lawsuit, then refuse to defend it.
Roberts' rule of reorder throws out the appeal against Walker's kangaroo-court decision, allowing to stand his ruling that a ban on same-sex marriage is unconstitutional under the United States Constitution. That has already been shown to be good enough for Gov. Brown to restart the same-sex marriage assembly line.
(After Walker reached that sweeping decision, he retired from the bench... and only then revealed that he was not only gay, which had already been known in some legal circles, but was also in a ten-year long committed relationship with his partner -- whom he now can marry, thanks to his own decision and the assist from John Roberts. Not that there was any bias, or even the appearance of bias, merely because the judge was in effect passing judgment upon himself and his own situation.)
The "standing" gambit is so powerful that it can now be used to utterly rewrite California's legal history, or that of any other state that unwisely thought it had some form of direct democracy. At any time in the future, so long as the listed defenders of such initiatives collude in refusing to defend a citizen vote they dislike (however long ago it occurred), they can sweep it aside in a heartbeat.
For example, Proposition 13 -- which restricts state property-tax officials from ruinously raising rates and reassessing real-estate values, driving pensioners out of their homes -- has long been a thorn in the side of the leftist California administration; they want a free rein to jack up property taxes, no matter the cost to homeowner cash-cows. But the Left has never been able to muster the votes to overturn Prop. 13. In fact, it is probably more popular among the citizens today than it was when enacted in 1978 -- as a citizens' initiative.
That problem has now been solved by the Chief Justice. All Gov. Jerry Brown need do now is get one of his cronies to file a lawsuit against Prop. 13, on any ground whatsoever, no matter how frivolous; then collude with state Attorney General and former San Francisco D.A. Kamala Harris to refuse to defend Prop. 13. Poof! It vanishes overnight, and to the devil with those durned unProgressivist voters.
To quote Robert Anton Wilson, channeling Lemuel Gulliver:
And so... these Learned Men, having Inquir'd into the Case for the Opposition, discover'd that the Opposition had no Case and were Devoid of Merit, which was what they Suspected all along, and they arriv'd at this Happy Conclusion by the most Economical and Nice of all Methods of Enquiry, which was that they did not Invite the Opposition to confuse Matters by Participating in the Discussion.
Some have suggested that Roberts only pushed the standing issue because he was afraid that Justice Anthony Kennedy would otherwise push the full marriage monty, corralling the Progressivists to strike Prop. 8 down on the merits. But Kennedy's vigorous dissent (and his ruling in the related Defense of Marriage Act) points to complete accord with federalism, allowing states to decide state matters themselves, without federal intervention:
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. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.
I don't believe Roberts reached his decision by an honest belief that the lack of a "Restatement of Agency" means the people are allowed no advocate, just as I no longer believe that he upheld Obamacare because he honestly thought it was just a great big 'ol tax. In both cases, I now believe Roberts' real motivation was his belief that, in certain issues of social reform (same-sex marriage, socialist medicine), power resides first in the government without need of a grant from the people. Or even, as in this case, in spite of a roaring dissent from the people -- twice.
John Roberts insisted he upheld Obamacare because it was vital that democratic votes be upheld if in any way possible, even at the expense of cultural destruction. But in Hollingsworth, it appears that cultural destruction -- or "reform" -- was the goal, not the byproduct. In that fierce urgency of now, it was the democratic vote that had to be thrown to the wolves. Roberts wears a robe; he knows best.
I believe the the real arc of Chief Justice John Roberts is now revealed: Clearly, the man has grown in office.
Hatched by Dafydd on this day, June 26, 2013, at the time of 4:00 PM
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