October 27, 2008

A Proper Response To Judicial Immodesty

My pledge to move on to issues other than Prop. 8 hasn't lasted very long, I'm afraid.

An old friend, a lawyer, wrote me today after reading the blog. He indicated, quite convincingly, that he agreed with me that same-sex marriage would be a good thing. He also indicated that he agrees that Prop. 8 would write discrimination into the Constitution, which is an odious thing.

Nevertheless, he intends to vote for Prop. 8.

The reason, boiled down to its essence, is that whatever his opinion on this particular issue, he thinks that the Supreme Court overstepped the boundaries of its power, that it arrogated to itself the right to make this decision in the face of the voters and the legislature. He wondered why the Democrats, who have been running this state with only sporadic Republican checks on their power when a Republican has gained the Governor's office, have not been able to muster the political courage to pass a same-sex marriage law on their own.

(I pointed out that the Legislature had passed such a law and, Governor Schwarzenegger vetoed it.)

But mainly what my friend was concerned with was that the judiciary needed to be put back in its place, and he resented that the only effective way to do that was to vote for Prop. 8 and write discrimination into the Constitution.

I initially wrote a long reply, explaining why I think sometimes judicial activism can be a good thing, about how the democratic process can stall out from time to time and had done so on the same-sex marriage issue -- as demonstrated by Schwarzenegger's veto, which was predicated solely on the majority passage of Prop. 22.

But then I realized that the right response was far simpler. If the problem is not the specific policy in question but rather the judicial arrogance that created the policy, then the solution is to go at the immodest judges directly. California's Supreme Court consists of seven elected Justices. They are accountable to the voters like any other public official.

And we have a history in this state of voting Justices off of our Supreme Court when they do not act in sufficient harmony with the public will. In 1986, three Justices lost their bids for re-election because of their lengthy history of obstructing implementation of the death penalty. The solution to that problem of the judiciary being out of step with the popular will was not to enact a law or amend the Constitution in such a way as to make death penalties easier to carry out. The solution was to get the judges who weren't discharging the law properly out of office.

They were thrown out, and their replacements got the message loud and clear. Death penalty reviews got fast-tracked and punishments were affirmed and sent off to the Federal courts for appellate review there, as is the procedure, and soon enough, the execution chamber in San Quentin was open for business again. That may sound morbid, but the point is, the voters got the policy they wanted and the judges who refused to give it to them had to go seek work in the private sector.

If the policy of same-sex marriage is good, but the judges were arrogant in implementing it, then the solution to that problem is to vote the judges out of office. Overruling the policy they created is not a direct response to the problem. Overruling the policy in order to write discrimination into the Constitution is using a hammer to smash a fly on a plate glass window. You might or might not kill the fly, but you're going to lose the window in the process.

Protecting the Constitution from becoming an instrument of discrimination is a higher duty, I submit, than expressing dismay over judicial immodesty -- especially when a very effective way of directly attacking judicial immodesty is available.


bobvis said...

I didn't read his e-mail and I don't know the guy, but my remote psychoanalysis meter reads that your buddy is undergoing some sort of rationalization. His argument for voting for the proposition is bizarre. In my non-expert opinion, his explanation is too bizarre to be something his conscious mind cooked have cooked up reasoning rationally--yes, even a lawyer.

I'm highly resistant to leveling this kind of accusation (note the disclaimers above). Still, the stench of rationalization on this argument is too much to bare.

Burt Likko said...

I understand where you're coming from and in a lot of cases, I'd agree with you. But not with this guy. I've asked for his permission to repost what he said with minor alterations because I think he's sincere -- I know from working with him that he can readily distinguish between the methodology used to make a result and the result itself. I just think that he's had the wrong reaction to an objection to the method, which is to throw out the result along with it.

If that's a rationalization on his part of a deep-seated prejudice against gay people, then it's deep-seated enough to be called "unconscious." I can't exonerate anyone, myself included, of unconscious reactions to things, I suppose. I hope he allows me to post his statement, so you can react to it yourself.

bobvis said...

I can't exonerate anyone, myself included

This is like saying "yes, even I too breathe."

My accusation isn't really that big of one. I don't know how you could go about testing this, but rationalization is just part of how we think. It isn't something we can avoid. All those complicated Yudkowsky posts at Overcoming Bias are really focused on trying to inject rationality into your thinking process because it doesn't come naturally to any of us. It's not like being a bright guy or getting a fancy degree (or even reading Overcoming Bias) will save you. It's only through rigorous application of the principles that Yudkowsky has spread through an enormous number of posts--including the ones he has yet to write and including the ones he probably never will. Figuring out how your own mind works is *hard*.
In any case, misrepresenting your own views in the voting booth just to stick it to the Supreme Court is petty. Using gay people to do it when you believe they have a moral right to marry to accomplish the same is something I can't imagine anyone doing if they genuinely believe they have a right to marry.

I should point out that I am not accusing him of latent discrimination. I don't claim to know his reasons for supporting prop 8. I just can't imagine the reason presented is really it.