Thursday, January 08, 2004

Rights & Reason: Judicial vs. Popular Tyranny

Peter Parisi, a copy editor at the Washington Times, would fit in well with George Wallace and the segregationists of America’s recent past. I say this based not on extensive personal knowledge of Parisi, but rather on a single column he authored in today’s Times. It may seem unfair to judge a man based on one article, but when it’s article of such breathtaking intellectual and moral ineptitude, summary judgment is proper.

Like most of the Times’ editors, Parisi is obsessed with preventing gay marriage. In his column “Taming judicial activism,” he equates the opponents of gay marriage—conservatives like himself—with Paul Revere and the Boston patriots who incited the Revolution. Parisi notes the relatively minor cause of the Boston Tea Party—a three cents-per-pound tax on tea—and bemoans the lack of greater outrage towards an even greater modern injustice:
What is less clear is whether the Massachusetts citizenry will rise up against a latter-day judicial oligarchy — four members of the state's Supreme Judicial Court — that makes King George III look positively benign by comparison.
This refers to the SJC’s recent ruling that the Massachusetts constitution requires the state legislature to provide for gay marriage. I can’t say I share Parisi’s view that this is the equivalent of the late English monarch, principally because I’ve actually read the Declaration of Independence, including the parts that describe George’s tyrannical acts. Here’s just a short list:
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences.
The last time I checked, the Massachusetts SJC has not forcibly quartered troops (straight or gay) in anyone’s homes, nor denied the citizenry their due process rights. Parisi’s only counterargument is that the SJC forced the state to adopt a policy disfavored by many of its citizens. No doubt that’s true. But forced recognition of gay marriage does not violate the individual rights of any Massachusetts citizen. There is no “right” to impose one’s cultural views upon the citizenry at-large. Conservatives take the opposite view. They believe that in any conflict between individual rights and the majority culture, it is the culture that should prevail. This is why almost all conservatives, including Parisi, routinely ignore the Ninth Amendment, which expressly protects unenumerated individual rights.

The rest of Parisi’s editorial is a laundry list of insults against the SJC: He calls them “robed rogues” and a “latter-day judicial oligarchy.” He goes on to suggest a solution to “judicial activism”—electing judges in states where they are currently appointed (as is the case in Massachusetts), and subjecting appointed federal judges to reappointment every ten years. Parisi is particularly enthusiastic about electing judges:
It’s no coincidence that states where judges are elected are less likely to experience judicial activism of the sort Massachusetts must now work to undo * * * The requirement that judges go before the voters periodically provides a much-needed restraint on the activist impulses of what was once regarded as the “least dangerous” branch of government.

This is a false premise. Many states elect judges that engage in anti-individual rights activism. The California Supreme Court—where judges are elected to 12-year terms—is one of the more notorious examples of this (just ask Nike). And at the trial court level, electing judges often leads to surrendering control of the courts to the trial bar, which largely fund judicial elections. This is why forum shopping is so successful in major tort cases; judges that fear re-election will cater to their primary financial backers. Parisi turns a blind eye to this reality, and in doing so, he ignores Justice Ruth Bader Ginsburg’s admonition about the proper role of a constitutional judiciary:
Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; “judge[s] represen[t] the Law.” Chisom v. Roemer, 501 U.S. 380, 411 (1991) (Scalia, J., dissenting). Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide “individual cases and controversies” on individual records, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 266 (1995) (Stevens, J., dissenting), neutrally applying legal principles, and, when necessary, “stand[ing] up to what is generally supreme in a democracy: the popular will,” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989).
Justice Ginsburg spoke here in a case about judicial elections, a practice she strongly disfavors. But there is nothing radical or activist about her position. It was obviously the position of the Constitution’s Framers. Parisi alludes to the “least dangerous branch” characterization of the judiciary, but as with the Declaration, he drops context. The phrase originated with Alexander Hamilton in Federalist No. 78:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Hamilton viewed life tenure as essential to the judiciary’s function, since it would protect judges from political coercion. Parisi wants that coercion present, however, to make judges “consider the long-term consequences of their rulings—if not for their country (or state), at least for themselves. Needing to be renominated and reconfirmed is, after all, preferable to being thrown into Boston Harbor by an outraged citizenry.” This is yet another false premise. He’s saying judges need to consider long-term consequences by being placed in short-term fear for their own jobs. He’s also saying judges should yield good judgment to popular passions. This is precisely what Hamilton warned against:
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

Rights, Hamilton noted, must be protected by the Courts when the Executive and legislative branches fail to do so. This does not mean the courts cannot or shold not be held accountable for malfeasance; that’s why the Constitution provides for impeachment and amendment. But Parisi rejects the Constitution’s underlying philosophy. He views rights as dispensable in the face of majority disapproval. In this respect, he is an ideological heir to George Wallace and southern segregationists, who viewed constitutional rights as a trivial nuisance in the face of popular bigotry. And, yes, when you oppose gay marriage on the grounds cited by Parisi, you are a bigot, not a defender of American values.

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