I would have figured Stephen Bainbridge was too smart to agree with a question with a premise this ignorant of history:
More to the point, will judges be returned to their historical role as neutral interpreters of the Constitution and precedent, or will the imperial judiciary be revitalized and extended for decades?
Judges as “neutral interpreters of the Constitution and precedent”? When, exactly, did the Supreme Court ever act like neutral interpreters of the Constitution? John Jay sat around on his buttocks all day while he was the first Chief Justice, but I don’t think this is the mythical “neutral interpretation” period.
Let’s review Supreme Court history… see if you can identify the “neutral interpretation” period.
- Marshall, John: Marbury v. Madison, Gibbons v. Ogden, McCullough v. Maryland, Barron v. Baltimore. Uh, nope.
- Taney, Roger B.: Dred Scott. Nope.
- Chase, Salmon P.: Ex parte Milligan, Slaughterhouse Cases. Nope. (I suppose you could give him a point or two for Ex parte McCardle.)
- Waite, Morrison R.: Might be a candidate. He died in 1888, and the court under him didn’t do much.
- Fuller, Mellville: Plessy v. Ferguson, Lochner v. New York. Double nope.
- White, Edward: Possible: Hammer v. Dagenhart, Schenck v. United States.
- Taft, William H.: Possible: Myers v. U.S., Stafford v. Holland.
- Hughes, Charles E.: “Switch in Time that Saved Nine” era. Not bloody likely.
- Stone, Harlan Fiske: Well, he didn’t last long, but he gave us Korematsu and Ex parte Quirin, so unless you’re Michelle Malkin I’d have to say his court was controversial.
- Vinson, Fred M.: Possible; but he didn’t last long either… Youngstown Steel springs to mind as politically important, though.
- Warren, Earl: Not bloody likely: Brown, Miranda, Gideon, Baker v. Carr… need I go on?
- Burger, Warren: Furman v. Georgia, Gregg v. Georgia, Bakke v. Regents, Buckley v. Valeo, Roe v. Wade. Not a chance.
- Rehnquist, William: Bowers v. Hardwick, Lawrence v. Texas, Texas v. Johnson, Casey, Grutter v. Bollinger. Not likely.
So, we have three chief justices since 1801 who may have presided over politically neutral courts, and I emphasize may since that’s likely only because I can’t think of any politically-controversial decisions they made.
Sorry, but I don’t buy the idea that there was ever a neutral period… there may have been a period, perhaps, during which the court’s idea of acceptable social policy comported with that of the particular period’s conservatives, perhaps, but not a “neutral” one by any stretch of the imagination.
The debate over the proposal before the APSA to move the 2012 annual meeting out of New Orleans due to the state’s voters’ approval of an anti-same-sex marriage initiative has hit the rumor blogs.
I didn’t bother to keep a copy of the message I sent to APSA from the website regarding the proposal—silly me expected it would be copied to me once it was sent—but I generally made the argument that both proposals on the table (either an outright policy of avoiding states that had passed anti-same-sex-marriage constitutional amendments or some sort of bizarre “case-by-case consideration” provision that reeks of committee-generated compromise) were fundamentally stupid and missed the point if the stated goals of the proponents—namely assuring the legal protection of individuals who are part of legally-recognized same-sex-married couples who attend the meeting—were the actual goals of the exercise. I also associated myself in my comments with the statement made by my colleagues at Tulane in their entirety, although I was not a signatory of their letter and my signature was not solicited.
My admittedly non-expert understanding of the legal situation—as someone who is neither gay nor in any sort of marriage-like partnership—is that legal recognition of same-sex marriage or an approximately equivalent status is confined to (within the realm of North America) Massachusetts, Vermont, and Canada. Of these places, there are perhaps a half-dozen or so cities capable of hosting APSA, and only one of them is in the United States (Boston, the site of the 2008 meeting). The symbolic opprobrium of anti-same-sex marriage constitutional amendments is, in practice, insignificant; California, Illinois, and New York authorities are no more likely to recognize a Massachusetts same-sex marriage than Louisiana’s authorities. So, in reality same-sex-married couples from the states and provinces that recognize such things are no more “at risk” of legal troubles in New Orleans than they would be in San Francisco, Chicago, or New York City.
If members of the APSA want to protest the symbolism of these amendments or just don’t want to be seen in retrograde states that don’t comport with their vision of a just and liberal society, they should be honest and forthright about that position rather than hiding behind outlandish hypotheticals that really don’t distinguish between the “enlightened” and “backward” states—and given the success of Oregon’s anti-same-sex-marriage ballot measure, that distinction is far narrower than most of us would care to admit.
Update: You can also have at the discussion here if you so choose.
My office-neighbor just observed that state supreme courts seem to have a lousy sense of timing when it comes to inserting same-sex marriage into presidential election year agendas.
I tend to agree with Timothy Sandefur’s view that the California Supremes made basically the right decision for the wrong reasons. I think the right solution, broadly speaking, is to formally decouple the civil and religious institutions of marriage (as is essentially the practice in a number of religions anyway, most notably Catholicism)—confer legal recognition only on civil unions licensed by the state (or recognized as common-law unions, where applicable), with criteria that are constitutionally permissible under strict scrutiny (for example, requiring that all parties be humans, limiting the number of participants, and requiring them to be of legal age of consent—no Rick Santorum or Warren Jeffs fantasies here), and make marriage something that can only be recognized by religious institutions or civil society and can be decided based on whatever criteria they choose. If the Washington Times and the Pope don’t want to say that Adam and Steve are “married,” so be it; if Adam and Steve want to say they’re married, more power to ‘em.
A pipe-dream, I know. But a man can hope, can’t he?
My OTB co-blogger James Joyner considers the question of what constitutes “judicial activism” as part of the broader debate over California’s same-sex marriage decision yesterday. The admittedly imperfect definition I use—and, kids, this is the one that’s the right answer on my American government exams—is “a tendency for judges to oppose the will of other courts or branches of government.” Mind you, that activism has a long and proud history and not one confined to liberal justices either.
In the case of California, given that just a few years ago the people of that state, acting as its lawmaking body through its public initiative process pursuant to its constitution, decided to legally define marriage as involving one man and one woman, I think you can fairly characterize the California court’s ruling as “activist.” That doesn’t mean it’s the wrong ruling under the constitution and laws of that state, but it’s not deference to either the will of the people or the executive branch either.
So I assume the usual suspects at APSA will now be calling for a boycott of all future meetings in California.
The sad thing is that I agree with the boycott ringleaders on policy but it’s hard to take their specious arguments against the 2012 New Orleans meeting as being motivated by anything other than uninformed or outdated stereotypes of how New Orleanians would behave, as if there are absolutely no gay and lesbian couples in New Orleans today who have successfully dealt with the lack of a legal right to have their relationship with their life partners legitimized by the state. If, as a social scientist, you want other social scientists who aren’t fully committed to your personal crusades to take your public policy arguments seriously, you need to present at least some sort of data in support of your arguments.