“Who Are The Judicial Activists Now?”: People Like Ted Cruz Will Never Stop Screaming Judicial Activism
As is regularly the case in American politics, you have to hand it to Ted Cruz: His reaction to the Supreme Court’s order on same-sex marriage was the best one I came across Monday for sheer outrage-iness. “Judicial activism at its worst!” he thundered (okay, the exclamation point is mine). This, remember, in response to an inaction. The Court did exactly nothing. And now that’s judicial activism.
In fact, the Court took a pass, one presumes, because there weren’t two circuit-court decisions before it that presented conflicting legal interpretations of statute. In the absence of such a conflict, the Court did exactly what most experts I’ve read and spoken to over the last few months predicted it would do. But to Cruz, it’s “astonishing.” Ditto that the Court acted (or in-acted) “without providing any explanation whatsoever.” Which it never does in such instances, but never mind.
People like Cruz will never stop screaming judicial activism. No, wait: They will stop screaming judicial activism, at least on the question of same-sex marriage; and they will stop doing so sooner rater than later. This will constitute a major victory for the forces of light, one very much worth marking and thinking back over.
Ever since, well, Brown v. Board of Education, and probably before, conservatives have complained about judges making law against the will of the majority of voters. The critique extends into nearly every little crevice and lacuna of our civic life. Roe v. Wade was legislating from the bench; affirmative action; of course taking God out of the classroom; but basically anything any court did that conservatives didn’t approve of.
And let’s admit it—on at least the abstract level, the complaint has often had merit. I mean, there can be little doubt that public opinion in Dixie in 1954 opposed the integration of the schools. So the Court of 1954 was indeed making law from the bench. And thank God for it, since the problem is that public opinion was wrong. Not just wrong like “I think I’m not putting enough salt in my grits” wrong, but immorally wrong. What’s a court to do in such a case? Many forests have been sacrificed so that various scholars could take up this question, but the answer is really quite short and simple: The right thing.
And so liberalism has lived now with decades of such criticisms from conservatives, with the understanding that it’s far better to have won the right in question from a court than not to have won it at all—and the understanding that out there in America, yes, the backlash against these judges and the policies that grew from their decisions was probably brewing.
But same-sex marriage is different for two reasons. First, the amazing and oft-commented upon speed at which public opinion has flipped. And second, the fact that if the legal consensus can be said to be coming down on one side or the other, it’s clearly coming down on the side of same-sexers having the same constitutional matrimonial rights that the rest of us have. When federal judges in Oklahoma and Utah say it, it ain’t judicial activism, folks. It’s, you know, the more-or-less-impossible-to-deny law.
So the process by which same-sex marriage has advanced in this country hasn’t been overwhelmingly judicial at all. Until the Court’s announcement Monday, in fact, the tally was that gay marriage became legal by court decision in 13 states, and by the will of the people in 11 (legislative action in eight, popular referendum in three). And in most of the states where the change happened through the courts, the issue is decreasing in controversy, and public opinion is coming along.
You may remember that Iowa was the first unexpected heartland state where the state Supreme Court made gay marriage legal, back in 2009. It’s true that three judges who so ruled were removed from the bench in judicial retention elections in 2010. But by 2012, when the “values” crowd went after a fourth, they walked away scalpless: Judge David Wiggins retained his seat by a landslide 10-point margin. The temperature had cooled. Today, polling shows that public opinion in the state is still divided on same-sex marriage but is firmly against any kind of state constitutional amendment that would ban the practice.
So now, after what the Court did Monday, same-sex marriage is going to extend into 11 new states. It seems fair to say that majorities are against gay marriage in most of these states (the aforementioned Utah and Oklahoma, plus Kansas, Indiana, West Virginia, and the Carolinas). We’re going to see the usual skirmishes and hear the predictable sound bites. In political terms, if you’re a liberal who wants to read the tea leaves, keep an eye trained on the North Carolina Senate race.
Incumbent Democrat Kay Hagan is steadily but narrowly leading GOP challenger Thom Tillis. Hagan backs same-sex marriage. But the state voted overwhelmingly against it two years ago in a referendum. And now, as a part of the Fourth Judicial Circuit, North Carolina is about to have the sinful practice foisted on it. Public opinion in the state still runs strongly against same-sex marriage. I think we can reasonably expect Tillis to double down on the issue, and it would be horrible to see Hagan lose because of it.
It’ll take time in these states, but the same thing will happen in them as is happening in Iowa. People will adjust. Gay couples will marry. Straight couples will see that their own marriages were somehow not sullied after all.
This is the core dilemma for conservatives on same-sex marriage: The more widespread its practice, the more accepted it becomes. This is the exact opposite of abortion and affirmative action, two red-hot issues on which the right has used the “judicial activism” charge to great effect in recent history. If you think abortion is murder, then the more widespread its practice, the more aghast you are. If you oppose racial preferences, then ditto. But that isn’t how same-sex marriage works. It takes nothing away from heterosexual couples, or for that matter anyone.
Eventually, the Supreme Court will rule 5-4 (with Kennedy) or maybe even 6-3 (with Roberts—not completely impossible) in favor of gay marriage, because the law is clear, and because the Court isn’t going to tell many thousands of married couples in 30 states that they’re suddenly not married. Judicial activism? No. Just the right thing. The judicial activists will be those, led by their godhead Scalia, who will try to invent new ways to march backwards while pretending that they themselves aren’t trying to dictate morality from the bench. And the charge of judicial activism, which hurt liberalism because it resonated with a resentment that millions of average Americans felt, will lose its sting soon enough.
By: Michael Tomasky, The Daily Beast, October 7, 2014
“Cruz’s ‘Tragic And Indefensible’ Reasoning”: Leave It To Ted Cruz To Render The Phrase ‘Judicial Activism’ Utterly Meaningless
By mid-day yesterday, hours after the Supreme Court had tacitly expanded marriage equality to several states, only one Republican U.S. senator, Utah’s Mike Lee, had issued a press statement. In the midst of an extraordinary societal shift on civil rights, Republicans – from Capitol Hill to the RNC – had effectively decided to take a pass on saying much of anything.
But it wasn’t long after that Sen. Ted Cruz (R-Texas) decided to weigh in. The fact that the far-right senator wasn’t pleased didn’t come as a surprise, but take a moment to soak in the Texas Republican’s incredible reasoning.
“The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” said Sen. Cruz. “By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.
“This is judicial activism at its worst.”
It wasn’t too long ago that “judicial activism” was a phrase that actually meant something. Folks on the left and right who were outraged when judges made up new legal rationales to justify controversial decisions could credibly use the words as part of a reasonable complaint.
In time, the phrase became diluted. Soon, every judge a partisan disagreed with became a “judicial activist,” whether the label made sense or not. Every ruling a partisan objected to became an example of “judicial activism,” even if it wasn’t.
But leave it to Ted Cruz to render the phrase utterly meaningless in a new and creative way: the Supreme Court, the senator now believes, can be guilty of “judicial activism” even when the justices literally haven’t done anything. Yesterday’s news was a breakthrough moment for equal-marriage rights, but in a practical sense, all the justices did was announce they wouldn’t hear some cases – something they do all the time, on all kinds of issues and areas of the law.
But that’s not all: Cruz then told everyone what he intends to do about this outrage.
The senator’s statement went on to say: “Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.”
And what is S. 2024? It’s a proposal to empower states to discriminate against same-sex couples and ignore marriages performed in other states. Luke Brinker explained, “Gay rights advocates have dubbed the bill the ‘You’re Not Married Anymore’ Bill,’ noting that it would sanction a patchwork of state laws pertaining to same-sex marriage and jeopardize couples’ rights as they travel from state to state.”
Cruz, of course, is also reportedly eyeing a national campaign in the near future. The right-wing Texan may very well be taking early steps to lock up the anti-gay vote now.
By: Steve Benen, The Maddow Blog, October 7, 2014
“A Bomb In The Middle Of The Presidential Campaign”: How Gay Marriage Could Cause The GOP Major Headaches In 2016
After yesterday’s dramatic ruling from the Supreme Court effectively legalizing same-sex marriage in 11 more states (that now makes 30, plus DC), you would have thought conservatives would be expressing their outrage to anyone who would listen. But their reaction was remarkably muted. “None of the top House GOP leaders (Speaker John Boehner or Majority Leader Kevin McCarthy) issued statements. Ditto the RNC,” reported NBC News. “And most strikingly, we didn’t hear a peep about the Supreme Court’s (non)-decision on the 2014 campaign trail, including in the red-state battlegrounds.” The only one who issued a thundering denunciation was Ted Cruz.
Even though the GOP’s discomfort with this issue has been evident for a while, with the unofficial start of the 2016 presidential campaign just a month away (after the midterm elections are done), the issue of marriage equality is going to become positively excruciating for them. Many people saw the Court’s denial of cert in the five cases they confronted yesterday as a prelude to the case they’ll eventually take, the one that will probably strike down all the state bans on same-sex marriage and make marriage equality the law of the land. That could happen in the Court’s current term, which runs from now until next summer. But it’s even more likely that it would come in their next term, the one going between October 2015 and the summer of 2016. If that happened, it would land like a bomb in the middle of the presidential campaign.
In a certain way, the GOP’s current dilemma is reminiscent of where Democratic presidential candidates were during the 2004 race, when the marriage issue burst into national attention after the Massachusetts Supreme Court declared in November 2003 that the state had to allow gay people to marry. Most of the candidates were unsure of what their position was or should be, trapped between the primary and general electorates. Howard Dean had been considered by many a wild-eyed liberal in no small part because as governor of Vermont he had signed a civil unions bill, even though he opposed full marriage rights. Before long, most of the Democrats running settled on that as their position too — civil unions yes, marriage no (the exceptions were Dennis Kucinich, Al Sharpton, and Carol Moseley Braun, all of whom supported marriage equality). None of them seemed to want to talk about it, and they were pulled one way by the general electorate, and another by the principle involved, and a party base that was moving to the left.
There’s a different quandary for today’s Republican presidential contenders. You have a general electorate supporting change, and a Republican base committed to the rapidly eroding status quo. And consider that the first three Republican contests are in Iowa, relatively moderate New Hampshire, and extremely conservative South Carolina, which happens to be one of the states affected by yesterday’s ruling. Ed Kilgore suggests that Iowa in particular is going to pose a challenge:
But the Iowa problem is real for Republicans: it became, because of a relatively early state judicial ruling allowing same-sex marriage, Ground Zero for conservative resistance to marriage equality. As recently as two years ago, I attended an Iowa political event, along with four or five former (and possibly future) presidential candidates, that was heavily focused on removing the judges responsible. I don’t think the majordomo of that event, Bob Vander Plaats (often called a “kingmaker” thanks to his timely support for the last two Iowa Caucus winners), is about to cave anytime soon. And so long as there is an opportunist or two in the presidential field who’s frantic for right-wing support (I’m looking at you, Bobby Jindal!), the odds of this issue being “off the table” in Iowa are very low.
Ed’s last point is critical. If all the candidates had a tacit agreement not to make too much of it, the issue might not be that big a deal. But all it takes is one who won’t go along to force all the other candidates to talk about it. And we already know that Ted Cruz, who will be bidding to be the choice of social conservatives, isn’t going to let it go.
Now put that in the context of the long-running conflict within the GOP between the Tea Party base and the more practical-minded establishment. When the party bigwigs are saying, “We really need to talk about something else,” the base is going to conclude that they are once again being betrayed by a bunch of elite Washington Republicans who are perfectly happy consorting with the sodomites who inhabit their metropolis of depravity.
Which, to a certain degree, is true. Many of those elite Washington Republicans may still write columns in support of “traditional marriage,” but they also regularly interact with gay people. They’ll come around before long, which will only make the base angrier.
The 2016 Republican primary was already shaping up to be a hugely entertaining bloodbath. This only makes it more exciting.
By: Paul Waldman, Contributing Editor, The American Prospect, October 7, 2014
“Dignity Is A Constitutional Principle”: Institutionalized Humiliation And The Constitutional Requirements Of Equal Protection
With gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.
In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.
Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.
As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.
On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.
This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.
This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?
Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
By: Bruce Ackerman, Professor of Law and Political Science, Yale University; Opinion Writer, The New York Times, March 29, 2014
“WTF Is ‘Natural Marriage’?”: When You Don’t Like The Way A Debate Is Going, Change The Terms
Today’s Politics 101 pop quiz: In the course of a fierce ideological battle, when it becomes clear that one side is getting its butt kicked, what are leaders of the losing team expected to do? A. Double down. B. Scare the crap out of their followers. C. Beg for money. D. All of the above.
No one really needs help with this one, do they?
So with public acceptance of gay marriage growing faster than Justin Bieber’s rap sheet, the culture warriors at the Family Research Council have been hawking their National Campaign in Defense of Natural Marriage. In multiple email calls to arms, FRC president Tony Perkins is urging people of “character and values” to “take a stand” by signing an on-line petition and, while they’re at it, donating a little something to this “counteroffensive.” By March 31, FRC wants—nay, “needs”—250,000 signatures and $1.1 million to “fund this demanding work of behalf of America’s families.” At that point, the e-petition will be deposited at the feet of the group’s latest hero, Sen. Ted Cruz, “in a public display of support for natural marriage.” Perkins pleads/warns/threatens: “I want to encourage you: natural marriage is not a lost cause in America—unless we give up and let the same-sex ‘marriage’ advocates have their way because we failed to stand up for what is right.”
Now, as a political obsessive subscribed to an unhealthy number of email lists, I receive a daily flood of overwrought solicitations from across the spectrum. Most I toss after a quick glance. But Perkins’s latest entreaties stopped me, not because of their tone or topic but because of their language. Specifically, I somehow missed the moment when “natural marriage” became the preferred term of anti-gay-marriage crusaders. (Sadly, despite several interview requests, the folks at FRC were unavailable to discuss this matter.)
It makes perfect sense when you think about it. As political rhetoric goes, “natural marriage” is ever so much more evocative—and, better yet, provocative—than the more commonly employed term “traditional marriage.” After all, plenty of folks would be amenable to, or perhaps even charmed by, the idea of an untraditional marriage. An unnatural marriage, by contrast, brings to mind all manner of unsavory couplings—like, for instance, the man-on-dog action that keeps Rick Santorum up at night. And, indeed, defenders of “natural marriage” talk a lot about how gay marriage is an affront to God’s “natural law.”
The folks at FRC did not, it should be noted, come up with the phrase on their own. The Catholic Church, for instance, tends to refer to “natural marriage” in contrast to “sacramental marriage”—the former being an exclusive, lifetime covenant between a man and a woman of no particular religious backgrounds, while the latter is specifically the union of a man and woman baptized within the Church. In this context, a natural marriage, while good and legitimate, is nonetheless spiritually inferior to a sacramental one.
Less canonically, “natural marriage” is also at times used as a rough synonym for “common-law marriage.” Even if limited to the hetero variety, such non-ceremonial arrangements, recognized by only a handful of states, would seem to be a far cry from the super-stable family environments that natural-marriage advocates are ostensibly seeking.
Not that any of this much matters now, as “natural marriage” has become a rallying cry for those looking to beat back, as Perkins puts it, “the agenda of the Progressive Left and radical homosexual lobby.” Back in 2004, a FRC pamphlet promoting hetero-only unions was all about “traditional marriage,” as were many of the group’s other communiques up through 2012. More recently, however, its commentary has been increasingly all “natural,” so to speak. Similarly, conservative groups like the Liberty Counsel (the legal nonprofit that takes up conservative causes pro bono) and Americans for the Truth about Homosexuality are solidly on the “natural” bandwagon.
As conservative spin doctor Frank Luntz taught us, if you don’t like the way a debate is going, you need to change the terms. Literally. Trying to rally a nation against the estate tax is a tough lift. But a “death tax”? Now there’s rhetorical gold. “Global warming” = scary and bad; “climate change,” not so much. In some cases, the differences may amount to no more than a couple of letters—say, the Democratic party vs. the Democrat party. And when it comes to firing up the faithful, not to mention separating them from their cash, “natural marriage” certainly seems to pack more gut-level oomph than its more “traditional” cousin.
The debate in question, however, may be beyond the point of such rhetorical retrofitting. These days, not even the veiled threats of bestiality, polygamy, and other comparably “unnatural” acts seem likely to derail the marriage equality train. Which may explain why, with less than a week left in its petition drive, FRC had yet to crack 10,000 signatories. Only 240,000 to go.
By: Michelle Cottle, The Daily Beast, March 27, 2014
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