by Diane Rufino, June 14, 2011

How do you know ‘judicial activism’ when you see it? Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

Beginning at the turn of the 20th century, activist judicial decisions initiated the start of a major transformation in American law. Prior to that time, there had certainly been many incidences of judicial overreaching, but these were generally rationalized as somehow representing the original intent of the drafters of the Constitution. But in the 20th century, and probably beginning most especially with Brown v. Board of Education (the school desegregation case), we had era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices wished to promote.

As we all know, there are two schools of thought with respect to the interpretation of our US Constitution. One school believes in the “original intent” of the document, as provided to us by our Founding Fathers, and therefore are referred to as “originalists.” In fact, our Founders provided clear instruction that the Constitution was to be construed strictly and in accordance to their intent. Others see the Constitution as a “living document” which is open to broad interpretation and are referred to as “liberals.” Under the “originalist” approach, the Constitution is viewed as a “static” document – one that doesn’t change meaning from era to era. What the document meant in 1787 is the same as what it means today. Judges are expected to stick to what the Founding Fathers intended. The Constitution’s principles are timeless, for as they are meant to address lessons that that hundreds/thousands of years of history have taught. “Originalists” see the Constitution in terms of black and white and its provisions are to be interpreted “literally.”

On the other hand, those who see the Constitution as a “living document” believe that judges can interpret it as they wish. They believe the Constitution is meant to ‘live’ and ‘breath.’ It is meant to evolve, as society evolves. In their opinion, it is essentially an outdated document that must be interpreted “liberally.” Liberal judges see the Constitution in shades of gray.

Conservatives are “originalists” because they want to ‘conserve’ our core values. Liberals or progressives take the “living document” approach because they can’t effect societal change unless they erase or erode old norms. They can’t make fundamental new law unless they destroy the old law.

Which is the correct approach? If you believe our Founding Fathers, then you would follow their advice and take the “originalist” approach and look at the Constitution as a static document with a clear definition and purpose. And why wouldn’t you believe our Founding Fathers? After all, they provided us all with the greatest grant of individual liberty with respect to government anywhere in the world. If you don’t value freedom and liberty and feel government knows best, than you might follow the “living document” approach and take your chances with whatever viewpoint the particular judge has at any given moment.

But you might want to reflect on this: The whole purpose of any constitution, and especially the Constitution of the United States, is to remove as best as possible and as much as possible the interpretation and application of the law from political controversy. With a constitution, the purpose is to set up basic principles that are going to apply and then the legislature and the courts are supposed to abide by them faithfully. The US Constitution has a method for dealing with political questions. It’s called the “Amendment process.” Article V. If it turns out that there are provisions of the Constitution that don’t adequately address issues and problems that we encounter today, then we go into that process. It requires a supermajority – 2/3 of both houses of Congress and then ratification by 3/4 of state legislatures. But that’s designed to make the process of changing the Constitution really responsive to the desires of the population. Changes to the Constitution should not be made lightly. We really want to know what the whole country in essence believes should be done and not just what a simple majority of one legislature should be done.

Support for the “originalist” approach to constitutional interpretation can be found in the following:

(1).  Contract law.  The Constitution is essentially an agreement, signed by the States, on behalf of We the People.  What it meant in 1787 is what it means today.  Can you imagine a reasonable person entering into an agreement of significant consequence w/o knowing how that document/agreement will be changed or interpreted  in the future?  No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

(2).  Article V of the US Constitution.  Article V explains the only way the Constitution can legally be altered – by the  amendment process.  The very fact that the Constitution has a provision for amending itself tells us that’s the way it’s supposed to be done.  

(3).  Our Founding Fathers.  The drafters themselves instructed us as to how the Constitution should be interpreted.  Thomas Jefferson said: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”   

(4).  Limits on the Judiciary, as envisioned by our Founders.  “Originalist” interpretation limits the judiciary and prevents the courts from asserting its will and discretion.  It prevents the courts from legislating from the bench and making policy (without any accountability to the People).

(5)  Marbury v. Madison (1803).  Chief Justice John Marshall delivered the decision where he said that judges take an oath to uphold the Constitution and therefore are bound to adhere to what it says.  Furthermore, he concluded that it would be “immoral” to require a judge to perform his judicial duties in a manner that would violate that judge’s oath.  He wrote: ’This oath certainly applies, in an especial manner, to their [judges’] conduct in their official character.  How immoral to impose it upon them, if they were to be used as knowing instruments, for violating what they swear to support?”  Why would the Constitution require a Supreme Court justice to swear an oath to support and adhere to the Constitution (“true faith and allegiance”) if he or she could simply turn around and give it different meaning?

Judicial activism is what results from a “liberal” interpretation of the Constitution and our laws. Essentially, judges “make law” by injecting their personal views into legal interpretation and analysis. This is dangerous because under the separation of powers doctrine, a doctrine so vitally important in maintaining the integrity of our government, only the legislative branch is supposed to “make” laws. The landmark case, Marbury v. Madison (1803) stands for the rule that the judiciary is supposed to faithfully interpret the law and to declare any law which is repugnant to the Constitution null and void.

We saw judicial activism in Brown v. Board of Education, in 1953, when the Supreme Court identified a new standard for education – classes must be integrated. The “Separate but Equal” doctrine that the Court had previously held as sufficient under the Equal Protection Clause was thrown out for education because Chief Justice Earl Warren felt it didn’t sufficiently apply. He felt that segregation by race inferred a sense of inferiority on black students which would affect their education. The decision was more about social reform than it was about following the letter of the law.

A look at a few landmark (activist) cases might help show how activism has redefined our Constitution and reshaped our social landscape.

Brown v. Board of Education (1953)

In Brown v. Board of Education, black children were denied admission to public schools that were attended by white children under laws requiring or permitting segregation according to race. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County.

For the previous 58 years, the Supreme Court had consistently held that separate (segregated) public facilities could be considered equal, if they met certain standards, and therefore met constitutional requirements. That is, this standard implied that there would be no inferior or unequal treatment and therefore, no Equal Protection violation. Nevertheless, the question before the Court in Brown was whether the “separate but equal” doctrine should apply to education. (The “separate-but-equal” doctrine had been upheld in an earlier decision, Plessy v. Ferguson, in 1896). Does segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?

The Court held that segregated schools are inherently unequal. The decision was surprisingly brief and contained very little in the way of legal argument and legal analysis…. particularly for a case that was to overturn a half century of jurisprudence. The case called on the Court to look at the intent of the 14th Amendment when it was drafted and adopted. The Court noted that Congress, when drafting the Fourteenth Amendment in the 1860s, did not expressly intend to require integration of public schools. Nevertheless, Warren noted that the emphasis on education had increased over the years and had become an essential part of citizens’ lives. Any child denied a good education would not be likely to succeed in life. He reasoned that when a state has undertaken to provide universal education, such education becomes a right that must be afforded equally to both blacks and whites – under the Equal Protection clause.

Were the black and white schools “substantially” equal to each other, as the lower courts had found? In tangible factors, yes, the schools were substantially equal to one another. However, after reviewing psychological studies showing black girls in segregated schools had low racial self-esteem, the Court concluded that separating children on the basis of race creates dangerous inferiority complexes that may adversely affect black children’s ability to learn. The finding of inferiority came from a “doll test. This test was designed by psychologists Kenneth Bancroft Clark and his wife, Mamie Phipps Clark in the 1940’s to study the psychological effects of segregation on black children. In the “doll test,” Kenneth and Mamie Clark used four plastic, diaper-clad dolls, identical in every way except for color. They showed the dolls to black children between the ages of three and seven and asked them questions designed to determine their racial perception and preference. Although all of the children readily identified the race of the dolls, when asked which they preferred, the majority selected the white doll and attributed positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” caused black children to develop a sense of inferiority.

The “doll test” was heavily referenced in the Brown decision.  Once the Justices accepted the results of the study, they concluded that the long-held ‘separate but equal’ doctrine did not address intangible factors that are important for education. The Court concluded that, even if the tangible facilities were equal between the black and white schools, racial segregation in schools is “inherently unequal” and is thus always unconstitutional.  As Justice Warren wrote: “The ‘separate but equal’ doctrine adopted in Plessy v. Ferguson, which applied to transportation, has no place in the field of public education.”  Warren reasoned that “separating black children from others solely because of their race generates 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. The impact of segregation is greater when it has the sanction of law. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law tends to impede the educational and mental development of black children and deprives them of some of the benefits they would receive in an integrated school system.”

The unanimous opinion signaled the end for all forms of state-maintained or intentional racial separation. The remedy was to require all intentionally segregated schools to be desegregated. In the Brown II case a decided year later, the Court ordered the states to integrate their schools “with all deliberate speed.”  Note that the case didn’t address geographical (or non-intentional) segregation.  (But later cases would force a remedy on those situations as well).

Instead of relying on a discussion of the applicable law, the Warren Court appealed to sociological arguments about the adverse effects of segregation. The Court’s argument in Brown was intellectually dishonest. It placed sociological evidence, and limited evidence at that, ahead of established law and legal reasoning in order to achieve the morally desired result. In order to blur distinctions based on race under the 14th Amendment, race itself had to be used as a criteria in the design of a remedy.

The Equal Protection Clause of the 14th Amendment had been construed by the Supreme Court as applying only to national citizenship, not state citizenship, as per the intent of the drafters at the time, and then affirmed in the Slaughterhouse Cases of 1873. In the majority opinion of that case, the Court also noted that the purpose of the Equal Protection Clause was to nullify laws that discriminated against blacks. The 14th Amendment guaranteed to blacks all the rights of national citizens, and prevented any state from passing a law that limited the rights of a national citizen. In Plessy, the Court reiterated the line of reasoning used in the Slaughterhouse Cases, adding: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”

Section 5 of the 14th Amendment reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The 1883 “Civil Rights” cases explained Section 5. These cases held that the 14th Amendment authorizes Congress to propose corrective legislation to penalize or counteract state legislatures that violate the Constitution with respect to the other sections, but does not allow Congress to pass general legislation on such matters. With Brown, the Supreme Court assumed that power to “correct” and that power of enforcement that Congress was denied. Brown put the Constitution on the side of racial equality and set into motion a series of decisions that would require almost anything to achieve that goal, even at the expense of breaking our own laws to do so. Brown ushered in an era of “activist” jurisprudence where the Court interpreted laws and the Constitution not according to established principles of construction, but according to the social agenda the justices sought to pursue in education. This analysis has nothing to do with whether the decision was right or not at the time, but is simply one that looks at the process of getting to that decision.

Another example is Green v. County School Board of New Kent County (1968), the Supreme Court case that held that “freedom-of-choice” school plans were insufficient to eliminate segregation. The Court was saying that there needs to be an affirmative plan to mix races in school districts. It was the Green case which prompted the Court to look for options on how to affirmatively and proactively integrate schools.

New Kent County had divested local boards of education of the task of assigning children to particular schools. Under the Pupil Placement Act, the authority to assign children was placed in a State Pupil Placement Board. Under the Act, students seeking enrollment for the first time were assigned at the discretion of the State Board and furthermore, students were automatically reassigned each year to the school previously attended unless, upon their application, the State Board assigned them to another school. White families almost uniformly chose schools that mostly whites attended and blacks almost uniformly chose the schools that mostly blacks attended. There was no forced segregation. For years, no student had applied for admission to another school under this statute (that is, no child applied for re-assignment). Nevertheless, the Supreme Court held that the plan was ineffective at desegregation and therefore violated the Constitution.

In Swann v. Charlotte-Mecklenburg Board of Education, in 1971, the Supreme Court endorsed forced bussing as an acceptable remedy to end desegregation in public schools. The school system may have violated the law, but the Supreme Court’s remedy also violated the Constitution. It ordered the schools to make race-based decisions (exactly what segregation did in the first place). For every black student that was assigned to a different school, a white student had to be assigned as well. Its decision was to order discrimination against some to stop discrimination against others. The Court’s intentions were good, but it still broke its own law nonetheless. The goal was social engineering. The goal was forcible racial quotas.

Swann v. Charlotte-Mecklenburg Board of Education (1971)

After the Supreme Court’s decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or more than 99% black – as a result of a desegregation plan that was approved by the District Court in 1965 (which was the year the lawsuit commenced). The judge upheld the desegregation plan because there was no requirement in the Constitution to act purposely to increase racial mixing. But something happened shortly thereafter… the Green decision. Swann therefore petitioned the Court for further relief based on the Greene decision which required school boards to come up with a desegregation plan that realistically works and erases any state-imposed segregation. (For years, the South resisted Brown’s mandate to desegregate schools).

The question before the Court in Swann was whether federal courts were within their constitutional authority to come up with remedies to overcome state-imposed segregation. In a unanimous decision, the Supreme Court held that once violations of previous mandates directed at school desegregation had occurred, the scope of district courts’ equitable powers to remedy past wrongs were broad and flexible. The Court ruled that: (1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas (racial quotas) were legitimate “starting points” for solutions; (2) predominantly or exclusively black schools required close scrutiny by courts; (3) the creation of non-contiguous school districts, as interim corrective measures, was within the courts’ remedial powers; and (4) busing was an acceptable remedy to reach desegregation status in particular schools. The Supreme Court finally made it clear to what extent the federal government would go to remedy instances of intentional segregation. Once school districts had committed violations of previous mandates (bad faith) aimed at desegregating schools, they would be subject to the “broad and flexible” equitable powers of district courts to remedy those past wrongs. Such plans could include the use of mathematical ratios or racial quotas and could include busing.

[Note that Milliken v. Bradley, in 1974, a case dealing with the desegregation busing plan across district lines among 53 school districts in metropolitan Detroit, set important limitations on busing. Milliken held that forced remedies such as busing could extend across district lines only where there was actual evidence that multiple districts had deliberately engaged in a policy of segregation].

Everson v. Board of Education (1947)

In Everson v. Board of Education, the Supreme Court declared that our nation, long-founded on Christian values for our government, for our laws, for our national character, and for notions of morality, would no longer tolerate religion in the school system…. the very place students were expected to learn about their nation’s history and heritage.

In New Jersey, public education was (still is) funded through property taxes. A New Jersey law authorized reimbursements by local school boards for the costs of transportation to and from schools – including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools.  In 1947, Mr. Arch Everson, a taxpayer and resident of Ewing Township, questioned whether these publicly-funded reimbursements could be used by parents to send their children to private religious schools.  He alleged that this practice violated the First Amendment and amounted to the township endorsing and supporting religion. The Supreme Court held that the reimbursements did not violate the Constitution, for parents had a “choice” and were not forced to send their children to sectarian (religious) schools. As Justice Hugo Black wrote:  “The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. 

But the decision didn’t end there.  In addressing the claims of Mr. Everson, the Court went into a discussion and analysis of Establishment Clause jurisprudence. 

While the Justices were able to reach the ultimate decision about the reimbursements, they took the occasion to make a sharp statement on the interpretation of the First Amendment.  Basically, the decision, written by Black (a former ranking member of the KKK appointed to the Court by FDR) declared that the First Amendment required a sharp and clear separation between government (of which public education is a function) and religion. Black wrote that there must be a “Wall of Separation” between Church and State.  Although it could be argued that Hugo Black lifted this phrase from the Klansman Creed which, after the KKK resurfaced again in the 1920’s, demanded a “Wall of Separation between Church and State” in order to prevent the growing Catholic population from inserting their views in politics, Black managed to cite a letter written by Thomas Jefferson in 1801 to the Danbury Baptist Association which included that phrase.

Where did the metaphor “Wall of Separation” originally come from?   Roger Williams, who founded the first Baptist Church in America and founded the colony of Rhode Island, not only was an advocate of the separation between church and state but used the metaphor in his writings.  Williams originally settled in Massachusetts Bay Colony in 1631 but was expelled four years later for his outspoken belief that every man had the complete right to enjoy freedom of opinion regarding religion. He left Massachusetts, befriended several Indian tribes, and soon purchased the land that would become Rhode Island. He named his first colony “Providence,” for obvious reasons. He founded the colony as a pure democracy, where the will of the majority would govern.  Furthermore, no one was refused admittance because of religious convictions or practice. Rhode Island would become a haven for Quakers, Jews and others fleeing from persecution. In 1639 Roger Williams joined the Baptist faith and founded the first Baptist church in America.  In 1644, he wrote a book, The Bloody Tenent of Persecution, and in it he used the phrase “A hedge or wall of separation between the garden of the church and the wilderness of the world.”  Did Jefferson know about that book and about that phrase?  When writing to the Danbury Baptists, did Jefferson  purposely include a phrase from the founder of their church, knowing that it would help make his point about religious persecution? 

The Danbury Baptists were a minority religion in Connecticut.  The state was dominated by the Congregational church and the Baptists were experiencing a degree of religious persecution. In the letter they sent to President Jefferson in 1801, the Danbury Baptists wrote:  “…Religion is considered as the first object of legislation, and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen.”  Clearly the Danbury Baptists are concerned that their religious rights – their rights to free exercise – are not “inalienable rights” as they are supposed to be, but rather are mere “privileges” afforded them by the state.  They are also clearly concerned about the sufficiency of those rights.. “What (little) religious privileges we enjoy, we enjoy as favors granted to us.”  And still another concern is the fact that those “privileges” come at a price (quid pro quo) – “we receive them at the expense of degrading acknowledgements.”  They probably had to acknowledge the supremacy of the Congregational church.  Finally, the Danbury Baptists appear to express hope that somehow Jefferson, as President, can have some influence on the situation.

In the letter he sent in response, in 1802, Jefferson sought to console the Danbury Baptists by assuring that the First Amendment would always prevent a formal establishment of one religion over another.  He wrote that the Establishment and Free Exercise Clauses built a “wall of separation between church and State.”  He explained:  “Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

To me, the letter seems very clear.  Jefferson directly connects two thoughts in one sentence…  the People spoke and declared that Congress should make no law respecting the establishment of religion, or prohibit the free exercise thereof, and ‘wall of separation.’  The “wall” refers only to government action that rises to the actual establishment of a national religion such that it burdens the free exercise of any religion that differs.

Roger Williams wrote about “the hedge or wall of separation between church and state” and Thomas Jefferson, in writing to a group of Baptists, used the same metaphor.  Both referred to the situation where a “wall” would prevent the establishment of a state-sponsored or national religion and would allow all persons of all faiths to practice freely and equally, without persecution or coercion.  On the other hand, the metaphor “Wall of Separation” also just happened to be a major component of the Ku Klux Klan’s platform of “social engineering” (pretty much the way “religious neutrality” is on the platform of current social engineering organizations). In an article in The Heritage Foundation entitled “The Mythical “Wall of Separation”: How a Misused Metaphor Changed Church–State Law, Policy, and Discourse,” Daniel Dreisbach wrote: “Black’s affinity for church-state separation and the metaphor was rooted in virulent anti-Catholicism.  In his book, Separation of Church and State, Philip Hamburger argues that Justice Black, as a former Alabama Ku Klux Klansman, was the product of a “confluence of Protestant [specifically Baptist], nativist, and progressive anti-Catholic forces.”  He wrote: “Black’s association with the Klan has been much discussed in connection with his liberal views on race, but, in fact, his membership suggests more about his ideals of Americanism.”   Dreisbach believes his membership especially explains his support for the separation of church and state.  “Black had long before sworn, under the light of flaming crosses, to preserve ‘the sacred constitutional rights’ of ‘free public schools’ and ‘separation of church and state.'” Although he later distanced himself from the Klan, Hamburger wrote: “Black’s distaste for Catholicism did not diminish.”

Nevertheless, Justice Black wrote in Everson: “In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’……. That wall must be kept high and impregnable. We could not approve the slightest breach.”  We may never really know Black’s true motivation, but his opinion does seem to establish a general hostility on the part of government towards religion.  (“We could not approve the slightest breach.”  The wall must be high and impregnable.”)   

It can be easily argued that no metaphor in any American letter has had a more profound influence on law and on policy than this letter by Thomas Jefferson. It can be argued that the United States effectively became a secular society with the Everson decision and its subsequent related cases.  Can we imagine what the self-proclaimed “Founder of Religious Freedom” would say if he knew that a phrase in a single letter effectively removed religion from public life, for it was always his opinion that “Free Exercise” was the more important of the clauses?  His own conduct is a testament to his views.  He used government funding to establish a church in the Congress building which he attended every Sunday but would not establish national days of fasting, observations, etc because that would amount to a government establishment of one particular religion.

Everson’s strongly-worded opinion paved the way for a series of later Supreme Court decisions that, taken together, brought about profound changes in legislation, public education, and other policies involving matters of religion. Many believe the Everson case undertook a “new” interpretation of the First Amendment and such Chief Justices of the Supreme Court as William Rehnquist (1986-2005) and our current Chief Justice John Roberts (2005-) believe the decision was an exercise of judicial overreaching and should be overturned. This may actually indicate the new direction of the Supreme Court. 

In Engel v. Vitale (1962), the Supreme Court held that it is unconstitutional for teachers and other school officials to require an official school prayer in public schools, even if it is non-denominational.

Roe v. Wade (1973)

It was the Roe v. Wade decision which announced a new fundamental right… the right of a woman to determine matters respecting her fertility and reproduction and to have an abortion on demand. This case legalized abortion.

Roe, a Texas resident, sought to terminate her pregnancy by abortion, but a Texas statute prohibited abortions except to save the pregnant woman’s life. The question before the Court was whether the Constitution embraces a woman’s right to terminate her pregnancy by abortion.

In a 7-2 decision, the Court decided that it does. Justice Blackmun wrote for the majority.  The majority held that a woman’s right to an abortion fell within the right to privacy. Privacy itself is not an express right enumerated in the US Constitution, but according to the Supreme Court in Griswold v. Connecticut (1965), many of the rights expressly granted and protected by the Bill of Rights are grounded or based in a fundamental right to privacy.  Indeed, as Justice Brandeis wrote in the 1928 case Olmstead v. US:  “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect… They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”   In Griswold, a case asking whether a married couple has the right to use contraceptives, is the Court recognized that there are certain zones or “penumbras” of privacy” that the Constitution recognizes as underlying many of our fundamental rights and are therefore privacy itself is protected under the Constitution.  [The right to privacy can be found in the “penumbras” and “emanations” of other constitutional protections.  Griswold]

In Roe, the Court held that a right to privacy under the Due Process clause of the Fourteenth Amendment extends to a woman’s decision to have an abortion, but that right is not absolute. That right must be balanced against the state’s legitimate interests in regulating abortions: (1) protecting prenatal life and (2) protecting the mother’s health. According to the decision, the woman’s right to control matters involving her fertility and reproduction are strongest in the early months of pregnancy and the state’s interests become stronger as the pregnancy goes on. The judges therefore used a balancing test and came up with a trimester approach to determine which party’s interests are most important at which time during the pregnancy. In the first trimester, the woman’s rights trump. In the second trimester, the state’s legitimate interests weigh strongly against the woman’s right and in the third trimester, the state’s interests outweigh the woman’s right. If the woman can make a claim that the pregnancy poses a threat to her health, she essentially and for all intents and purposes can have an abortion at any point in the pregnancy.

In Roe, the Court also held that the fetus has no right of its own to claim protection because it is not a “person” within the meaning of the 14th Amendment. (“All persons born or naturalized in the United States…”). Therefore, the Court redefined “life” to mean only babies who have been born. 

Justice White dissented and wrote: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” [Roe v. Wade, 410 U.S. 179]. Justice William Rehnquist also dissented. He would later write: “The drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

Our nation was founded on a belief in God. For about 300 years we respected that. All of a sudden, this bit of history has become an inconvenient truth. We believed what God told us.. that every human life is special and worthy of life and dignity.. from the unborn to the very old. We understood what the laws of science itself told us: that a fetus is indeed a living being. We don’t take lives. And then the Roe decision came along.

It should be noted that Justice Ruth Bader Ginsberg, in a 2009 interview by the NY Times, admitted that she was under the impression that the Roe v. Wade decision on abortion was predicated on the Supreme Court majority’s desire to diminish “populations that we don’t want to have too many of.” In this shocking admission, we get a glimpse into the reality that is our Supreme Court. The Justices have “agendas.”

Flemming v. Nestor (1960)

Probably every single worker in this country who has money mandatorily taken from their paychecks to be put into a special fund for Social Security benefits upon retirement would assume that those funds are property rights that have simply not ‘matured,’ in a sense.  Most would feel a sense of a contractual or property right to those funds.  They see the government as ‘temporarily’ holding the money for the individual’s benefit.  After all, they already are “forced” to pay federal and state income tax and they understand that those amounts rightfully then become the property of the federal government, under the 16th Amendment, the Social Security Act, and other laws.  Social Security deductions are not property that rightfully belongs to the government.  But anyone who believes this sound-proof logic would be wrong.  In Flemming v. Nestor, Nestor challenged Section 1104 of the Social Security Act (1935) after he was denied Social Security payments as a deported member of the Communist Party. He argued that a contract existed between himself and the United States government, since he had paid into the system for 19 years.

The Supreme Court held that workers have no contractual right to their Social Security deductions and no right to Social Security in general.  It held that Social Security payments are not property rights and therefore if the government interferes with those payments, there is no 5th Amendment Due Process violation (taking of life, liberty, or property without ‘due process of law’).  The Court noted that to say that the Social Security system represents ‘accrued property rights” would deprive Congress of the flexibility it needs to adjust to ever-changing conditions.

In reaching this decision, the Supreme Court ignored 300 years of jurisprudence which focused on the three most dearly-held rights of man: Life, Liberty, and Property (see John Locke, Thomas Jefferson, and most of our Founding Fathers).  

And this brings us up to our most current activist Supreme Court decision…. Brown v. Plata.

Brown v. Plata (May 23, 2011)

In a highly controversial decision by the US Supreme Court, Brown v. Plata, handed down on May 23, the liberal members of the Court painted such a terrible picture of the California prison system as violating prisoner rights that it felt it necessary to authorize an extraordinary remedy calling for the release of 46,000 convicted criminals. It was a 5-4 decision that broke along ideological lines, with Justice Kennedy siding with the liberal members and tipping the decision in their favor. Justice Scalia called the order affirmed by the majority “perhaps the most radical injunction issued by a court in our nation’s history.” Justice Alito said “the majority is gambling with the safety of the people of California.”

Justices Antonin Scalia and Samuel A. Alito Jr. filed vigorous dissents, which will be the focus of this analysis. Justice Clarence Thomas joined in Scalia’s dissent and Chief Justice John Roberts joined in on Alito’s dissent.

California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions were the subject of two federal class action suits. In the first class-action suit, Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to over-see remedial efforts reported 12 years later that the state of mental health care in California’s prisons was deteriorating due to increased overcrowding. In the second class-action suit, Plata v. Brown, filed in 2001 on behalf of prisoners with serious medical conditions, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by over-crowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing over-crowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. [The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata district court judges and a third, a Ninth Circuit judge. After hearing testimony and making extensive findings of fact, this three-judge court ordered California to reduce its prison population to 137.5% of design capacity and to do so within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval. The state of California (Governor Brown) appealed the decision to the Supreme Court, arguing that the three-judge panel had no jurisdiction to rule on the issue and that it didn’t give California a reasonable amount of time to comply with previous court orders directed at remedying the problem. The high Court affirmed the three-judge court’s order. [Brown v. Plata, pg. 1].

The Prison Litigation Reform Act (PLRA) states that prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, and extend no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U. S. C. §3626(a)(1)(A). This standard is what stands at the heart of this decision.

The plaintiffs alleged that “system-wide deficiencies in the provision of medical and mental health care, taken as a whole, subject sick and mentally ill prisoners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.” As Scalia pointed out, current jurisprudence does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools, prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it…. That is, at least until this decision. [See Roper v. Simmons, 543 U. S. 551, 615–616 (2005)]. The plaintiffs did not claim, and it would absurd to suggest—that every single one of those prisoners has personally experienced “torture or a lingering death.” [Ibid, pg. 19]

Justice Anthony Kennedy sided with the liberal block and wrote the decision for the majority. In the decision written by Justice Kennedy (and joined by Ginsburg, Breyer, Sotomayor, and Kagan), the majority agreed with the lower court’s description of the prison system as failing to deliver minimal care to prisoners with serious medical and mental health problems and producing “needless suffering and death.” The majority held that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. The majority concluded that if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. In addressing the public safety issue that would result by releasing prisoners/criminals, the majority agreed with the three-judge court which concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits of a reduction in overcrowding.” [Ibid, pg. 45]. How this makes any possible sense, I’ll never know.

Justice Alito put the court’s remedy of prisoner release into perspective: “The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.” [Ibid, pg. 76]. And our Supreme Court upheld that remedy. Perhaps the criminals should be released into the neighborhoods of Ginsberg, Sotomayor, Kagan, and Kennedy and their families.

Kennedy wrote: “The medical and mental health care provided by California’s prison falls below the standard of decency,” and “this extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.” [Ibid, pg. 54]. Justice Kennedy seemed to state that the reduction in population need not be achieved solely by releasing prisoners early. Among the other possibilities, he said, are new construction, out-of-state transfers and using county facilities. The ruling gives the state some flexibility when it comes to how it goes about reducing its prison population even suggesting that three judge panel that originally issued the order could extend a two-year compliance order if it felt the state was making progress in its efforts to reduce the inmate population to 137.5% of capacity. Yet, citing the lower-court decision, he wrote: “The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall.” [Ibid, pg. 38]. The majority opinion included photographs of inmates crowded into open gymnasium-style rooms to emphasize the status.

A scathing dissent was written by Justice Scalia, with whom Justice Thomas joined. Scalia wrote: “Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd… I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” [pg. 59]

He further wrote: “It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” [pg. 63]

What are the deficiencies that caused the majority to conclude that 46,000 prisoners need to be released from prison for Eighth Amendment violations? The deficiencies noted by the majority include the following:
(a) exam tables and counter tops, where prisoners with communicable diseases are treated, are not routinely disinfected;
(b) medical facilities “are in an abysmal state of disrepair”;
(c) medications “are too often not available when needed”;
(d) basic medical equipment is often not available or used;
(e) sometimes there are long wait times to see a doctor (backlogs);
(f) there is some over-crowding (prisoners may share just a few toilets and showers, which may be “‘breeding grounds for disease”);
(g) Mentally ill prisoners are housed in administrative segregation;
(h) prisons “would hire any doctor who had “a license, a pulse, and a pair of shoes”;
(i) medical and mental health staff positions have high vacancy rates
(k) rooms require repair and/or “prisoner-proofing (for example, two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup-port a noose)

As Alito asked: “Is it plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?” [pg. 83]. Clearly, the most of the problems noted above could be addressed without releasing prisoners, putting innocent citizens at risk, and without incurring the costs associated with a large-scale prison construction program. Wouldn’t the release of 46,000 prisoners back into California potentially burden health services that are already over-burdened?

In his dissent, Scalia expressed great objection to the use of structural injunctions, as the majority supported. As he states, they are not only radically different from the injunctions traditionally issued by courts of equity, but they also exceed the “judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’ ” As Scalia wrote: “Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials… they force judges to engage in a form of fact-finding-as-policymaking that is outside the traditional judicial role. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations.” [pg. 64]

Scalia also noted that the majority failed to take sufficient notice of the PLRA requirement that, before granting “prospective relief in a civil action with respect to prison conditions,” a court “must give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U. S. C. §3626(a)(1)(A). The majority simply accepted the opinion of the lower court which rejected testimony that inmates released early from prison would commit additional new crimes and instead claimed to find “clear evidence that prison overcrowding would “perpetuate a criminogenic prison system that itself would threaten public safety.” The lower court further volunteered its opinion that the prison population should be reduced even further with the reform of California’s antiquated sentencing policies. Scalia hinted that the District Judges did not make an objective decision and were bent on the remedy they proposed. As he wrote: “It is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments.” And using structural injunctions only encourages judges to insert such policy judgments. [pp. 66-67]

Justice Alito and Chief Justice Roberts agreed with Justices Scalia and Thomas that the lower court abused its discretion by improperly refusing to consider evidence of recidivism and impact to public safety, by refusing to entertain alternative remedies, and by refusing to accept updated information and data about the prison system (including evidence that many of the on-going prison violations had been addressed). For example, rather than prevent the release convicted criminals, the 3-judge panel refused to allow out-of-state transfers for prisoners who volunteered for such relocation. “The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. Common sense and experience counsel greater caution,” Alito wrote. [pg. 77]. Note that the Court could only reverse the findings of fact of the three-judge court if it held a “‘definite and firm conviction that a mistake has been committed (the standard for reversing a lower court’s finding of fact), but the conservative justices clearly felt that a mistake in judgment had been made.

The lower court recited statistics that were clearly out of date and the majority perpetuated them, even refusing to receive updated reports. For example, the majority The Court took note that the lower court’s finding that as of 2005 “an inmate in one of California’s prisons needlessly dies every six to seven days.” Yet by the date of the trial before the three-judge district court, the death rate had been trending downward for 10 quarters, and consequently, the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent. In fact, between 2001-2007, the California prison system had the 13th lowest average mortality rate of all 50 state systems. The fact is that the population of the California prison system, which had 156,000 in-mates at the time of trial, is larger than that of many medium-sized cities, and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. I think most people can tell tales of family, friends, co-workers, classmates, or even anecdotal tales of people who waited in emergency rooms with serious health problems who we left untreated for far too long.

Finally, Scalia noted that the majority’s decision encroaches on a matter that traditionally belongs to a state under its sovereignty rights. Essentially, the majority upheld an order granting the functional equivalent of 46,000 writs of habeas corpus. As a result, it “disturbs the State’s significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” As he wrote: “It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.” (pg. 70)

Summing up his position, Scalia wrote: “I do not believe this Court can affirm this injunction. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text of18 U. S. C. §3626(a)(1)(A): ‘Narrowly drawn” means that the relief applies only to the “particular prisoner or prisoners’ whose constitutional rights are violated; ‘extends no further than necessary’ means that prisoners whose rights are not violated will not obtain relief; and ‘least intrusive means necessary to correct the violation of the Federal right’ means that no other relief is available…. The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts.” (pp. 73-74)

Justice Alito, with whom Chief Justice Roberts joined, agreed with Justice Scalia. Alito wrote: ” The decree in this case is a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA) was enacted to prevent… In this case, a three-judge court exceeded its authority under the Constitution and the PLRA. ” (pg. 75) Before ordering the release of any prisoner, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ acknowledgement that prisoner release is inherently risky. In fact, in creating the PLRA, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier (early 1990’s) in Philadelphia provided a good example and should have provided a good example to the Court’s majority. The federal courts enforced a cap on the number of inmates in the Philadelphia prison system and as a result, thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses. Members of Congress were well aware of these statistics. Yet despite these statistics and the records of other past prisoner release orders, the three-judge district court in this case concluded that releasing 46,000 criminals would not result in criminal activity like that seen in Philadelphia and would actually improve public safety. As Alito wrote: ” This is a fundamental and dangerous error.” (pg. 88). He concluded that the three-judge court approved a population reduction plan that neither it nor the State of California found could assure that its implementation would be without unacceptable harm to public safety.

Scalia concluded that if the only viable constitutional claims consist of individual instances of mistreatment, as in this particular case, then a remedy reforming the system as a whole goes far beyond what the statute (PLRA) allows. (pg. 63) Alito concluded as such. “Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State’s failure to provide constitutionally adequate health care. This argument is implausible on its face and is not supported by the requisite clear and convincing evidence…. The majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.” (pp. 82 and 91)

I focused on the dissenting opinions because it is nice to hear justices who actually understand the role of Article III courts. I appreciate that while they understand that prisoners have certain rights, they also must not ignore the rights of innocent citizens to be safe and secure in their neighborhoods. I noticed that the Supreme Court justices didn’t conduct any “balancing tests” like they did in Roe v. Wade to weigh the legitimate interests of respective parties. Do you think this decision might also be a wake-up call for our government to finally start enforcing a reasonable immigration policy? It is estimated that about 20% of California’s prison population is comprised of illegal (Hispanic) immigrants. The court-order upheld by the Supreme Court in this case represents a release back into society of approximately 30% convicted criminals. Without an illegal immigration problem, California would not necessarily have a prison over-crowding problem (that is, one that requires drastic remedies) and the good citizens of the state would not have to face what the people of Philadelphia suffered.

With this brief over-view of activist Supreme Court decisions, I was hoping to show how cavalier our Justices have been over the years with our Constitution and laws to make new law and policy. The Court is currently split equally (4-4) between those who are “originalist” in their approach to interpretation of our Constitution and those who interpret it liberally and often with reckless abandon. One Justice, Justice Kennedy, is often the deciding vote on matters of ideological differences. He is often referred to as the most powerful man in America because whichever side he happens to come down on in any particular case will often be the deciding vote. In McDonald v. City of Chicago, he was the deciding vote on an important Second Amendment rights decision and yet in Plata, he was the deciding vote to open the prisons and send 30% of prisoners back into decent communities. When Obamacare comes before the high Court, Kennedy no doubt will be the Justice to look to.

Understanding judicial activism helps to explain the success of the Progressive Movement. The Progressive Movement seeks to remake society by destroying the old, or traditional, society. It can only do that by destroying the social norms, institutions, and the laws and guidelines we have used to define that traditional society.  When Progressives can’t invalidate laws on their face or through the ordinary government process, it challenges them in federal court, where they know judges aren’t necessarily confined by the letter or spirit of the law.

OTHER RECENT CASES

Abbott v. Burke (New Jersey, 2011)

This year, in the case of Abbott v. Burke, the New Jersey state Supreme Court addressed the question of what is the constitutionally-required level of funding for schools. The particular issue before the court was whether the State’s failure to fund education at the level called for by the (NJ) School Funding Reform Act of 2008, N.J.S.A. 18A:7F-43 to -63 (“SFRA”), due to budgetary constraints, violated the New Jersey Constitution’s guarantee of a “thorough and efficient education.”

Up until 2008, when SFRA was enacted, New Jersey had two school systems – 580 conventional districts and 31 “Abbott districts.” “Abbott” districts are school districts specifically in New Jersey that are covered by (and named after) a series of NJ Supreme Court rulings, that began in 1985. The 1985 case concluded that the education provided to school children in poor communities was inadequate and thus unconstitutional. The rulings mandated that schools in these districts had to be funded at the level enjoyed by children in the most affluent school districts. That is, the schools in Abbott districts must reach parity with the schools in the wealthier districts. There are 31 “Abbott” school districts in NJ. The purpose of SFRA was to eliminate the distinctions between “Abbott” and “non-Abbott” districts by providing supplemental money to at-risk children no matter where they were enrolled. The SFRA, the law at the center of the controversy, was the brainchild of the Corzine administration. Even though former Governor John Corzine’s policies nearly bankrupted the state, Governor Chris Christie was of course obliged to obey the laws he signed, including the SFRA. The problem was that when he signed the state budget, it didn’t include enough money to meet the mandates of that law.

The NJ constitution states that the “legislature shall provide for the maintenance and support of a thorough and efficient system” of free education from elementary school through high school. Back in January, the NJ Supreme Court concluded that the record was insufficient to make a determination and then appointed Judge Peter E. Doyne as a Special Master to create a record on this issue and to make proposed findings of fact and conclusions of law. The Order required Judge Doyne to provide his findings and conclusions by March 31, 2011. The court, on May 24, accepted the conclusions of Judge Doyne and ordered that the state spend an extra $500 million next year in public school education, for these “Abbott” school districts. The question is why are they even still considered a ‘separate’ type of school district? The purpose of the massive funding over the years was intended to “eliminate the distinctions” between the school districts.

Governor Chris Christie and state legislators are trying desperately to solve the state’s financial crisis. The taxpayers in the state are overtaxed and overburdened and need relief. Who do you think knows best how to deal with the crisis… elected legislators or judges who are appointed and not accountable to those taxpayers? The NJ Supreme Court decided it was the court who knows best. It decided it has the authority to determine what level of funding satisfies the constitution’s requirement and to order the state to spend more if the court is not satisfied. This case is an example of where the state’s highest court has court has taken on the role of judiciary, legislator, and chief executive and this particular court has a history of such decisions.

The state is seeking, by way of legislative power over appropriations, to diminish the “Abbott” districts’ pupils’ right to funding to receive a “thorough and efficient education” through SFRA and to achieve a release, if you will, from the “parity’ requirement. State legislators are not seeking to use the appropriations power as a shield to the state’s responsibilities but rather, to be able to approach the matter in a reasonable and fiscally sensible way.

Perry v. Schwarzenegger (California, 2010)

On August 4, a federal court in California struck down the gay marriage ban, popularly known as Proposition 8, and handed a victory to thousands of gays and lesbians who demanded they be entitled to “marry” their partners. Civil unions weren’t good enough, for in their eyes they are a “separate-but-equal” classification that made them feel like second class citizens. True equality was their desire. From plaintiffs’ standpoint, the title of marriage is an intangible right and California had no legitimate reason to deny it to them. In Perry v. Schwarzenegger, the district court for the northern district of California found in favor of Kristen Perry and her partner Sandra Stier and Paul Katami and his partner Jeffrey Zarrillo, all plaintiffs in this litigation. The judge, Judge Vaughn R. Walker, was openly gay.

Judge Walker, who was appointed to the federal bench by Ronald Reagan in 1987 and then promoted by George H.W. Bush to sit on the U.S. District Court, declared that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Proposition 8 is the California state constitutional amendment voted upon by the majority of the people in the state to preserve the traditional definition of marriage. The constitutional amendment represented the will of the people themselves after the state legislature removed the words “between a man and a woman” from the definition of marriage in the California Family Code (which itself had also been a popular initiative). As Douglas Napier, an attorney with the Alliance Defense Fund who defended Proposition 8, commented: “The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters.” He scolded the judge for making the case more about gay rights than about voters’ rights. Brian Brown, president of the National Organization for Marriage, said: “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman.”

Plaintiffs insisted that there is no meaningful distinction for purposes of marriage between a gay person in a “long-term committed relationship” and any other person, and that any effort to draw such a distinction would present an “intractable line-drawing problem.” In their complaint, plaintiffs alleged that they “are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex . . . .” They argued that Proposition 8 is unconstitutional because it prohibits them “from marrying the person with whom they are in a loving, committed, and long-term relationship . . . .” Indeed, Plaintiffs insisted that they “are similarly situated to heterosexual individuals for purposes of marriage because, like individuals in a relationship with a person of the opposite sex, they are in loving, committed relationships.” They claimed that they were denied their due process rights under the Fourteenth Amendment (which provides that “State shall deprive any person of life, liberty, or property, without due process of law”) because their freedom to “marry” the person of their choice was violated by Proposition 8. Plaintiffs claimed that the right to marry is a fundamental right, protected by their state constitution. Specifically, plaintiffs alleged a due process violation because: (1) Proposition 8 prevents each plaintiff from marrying the person of his or her choice; (2) One’s choice of a marriage partner is protected by the Fourteenth Amendment from the state’s unwarranted regulation of that choice; and (3) California’s provision of a domestic partnership (a status giving same-sex couples the same rights and responsibilities of marriage without providing the actual ‘title’ of marriage) does not afford plaintiffs an adequate substitute for marriage and, by disabling plaintiffs from marrying the person of their choice, invidiously discriminates, without justification, against plaintiffs and others who seek to marry a person of the same sex.

On the other hand, proponents (ProtectMarriage.com) defended Proposition 8 on the grounds that it:
(1) Maintains California’s definition of marriage as excluding same-sex couples;
(2) It preserves the traditional meaning of marriage as it has always been defined in the English language;
(3) It preserves the traditional social and legal purposes, functions, and structure of marriage;
(4) It affirms the will of California citizens to exclude same-sex couples from marriage;
(5) It promotes stability in relationships between a man and a woman because they naturally (and at times unintentionally) produce children;
(6) It promotes the optimal environment (that is, in households with a man and wife) for child-rearing; and
(7) It allows the state to proceed with caution when implementing social changes.

They argued that Proposition 8 should be evaluated in light of the “central purpose of marriage, in California and everywhere else,…. to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.” As they explained: “responsible procreation is really at the heart of society’s interest in regulating marriage.” Furthermore, they asserted that marriage for same-sex couples is not implicit in the concept of ordered liberty and thus its denial does not deprive persons seeking such unions of due process. Nor, proponents continued, does the exclusion of same-sex couples in California from marriage deny them equal protection because, among other reasons, California affords such couples a separate and equal (a parallel) institution under its domestic partnership statutes.

The judge criticized proponents for weak and bigoted arguments and commented that their case basically hinged on the argument that marriage should be protected because of procreation. The judge went so far as to paraphrase their argument as follows: “Proponents’ procreation argument, distilled to its essence, is as follows: ‘the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households.’ The state therefore, according to their argument, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.”

It is interesting, in a disturbing way, to note in the Judge’s decision how he referred to and characterized proponents. Basically he viewed them as bigoted, morally righteous, and outwardly discriminatory. He accused them of intentionally perpetuating invidious stereotypes to advance their agenda. As the judge described: “Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children. The premises on which Proposition 8 was presented to the voters which gave him cause for concern were the ones as follows:
(1) Denial of marriage to same-sex couples preserves marriage; (he didn’t buy it. Didn’t think it was a compelling argument)
(2) Denial of marriage to same-sex couples allows gays and lesbians to live privately without requiring others, including (perhaps especially) children, to recognize or acknowledge the existence of same-sex couples; (he found this insulting)
(3). Denial of marriage to same-sex couples protects children; (he claimed this allegation was based on cruel stereotyping)
(4). The ideal child-rearing environment requires one male parent and one female parent; (he didn’t buy this one either)
(5). Marriage is different in nature depending on the sex of the spouses, and an opposite-sex couple’s marriage is superior to a same-sex couple’s marriage; (he found this argument had no merit)

Judge Walker, throughout his decision, consistently equated marriage with “committed long-term relationships.” Indeed, he emphasized that “deep emotional bonds and strong commitments” are the key “characteristics relevant to the ability to form successful marital unions.” In the end, Judge Walker was persuaded by the plaintiffs’ arguments that Proposition 8 is an intentionally discriminatory attempt by bigoted individuals to perpetuate invidious stereotypes in order to maintain marriage as an institution only for heterosexuals and that gays and lesbians are capable of forming stable long-term committed relationships just like heterosexuals. He was not persuaded by proponents’ arguments and testimony to show the benefits of a traditional nuclear family with traditional gender roles. Judge Walker found in favor of the gay and lesbian plaintiffs.

The decision was appealed to the United States Court of Appeals for the Ninth Circuit, and on June 13, 2011, a hearing was conducted before another district court judge regarding a motion to vacate Judge Walker’s decision because of his sexual orientation. As proponent’s (ProtectMarriage) filing states, “Judge Walker’s 10-year-long same-sex relationship creates the unavoidable impression that he was not the impartial judge the law requires.” (Judge Walker retired from the bench in February 2011). On June 14, the federal District Court for the Northern District of California upheld Judge Walker’s decision. Judge James Ware would not throw out Walker’s decision on the basis of bias. Doing so, Judge Ware noted, would send a message that minority judges could not rule in civil rights cases. (Judge Ware took over the Perry case after Walker retired). Judge Walker, who retired from the bench in February of this year, had remained silent about his homosexuality and status while on the bench. He discussed it for the first time once he retired, sharing that he has been in a 10-year relationship with a physician. ProtectMarriage thought he should have disclosed the relationship; the group said that the judge’s relationship put him in the same shoes as the plaintiffs, and therefore should have been disclosed when he was assigned to the case. In response to that argument Ware wrote: “The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married and that rendered him incapable of making an impartial decision is warrantless.”

So that’s one challenge down already.

In every case, there are “findings of fact” and “questions of law.” The judge weighs the facts, evidence, and testimony and makes the determination as to which facts are to be given the most weight. These are the “findings of fact.” Then he applies the law to those facts, which is the “questions of law” part of the decision. Legally, the challenges in this case are 2-fold: attacking the judge himself on the grounds of unreasonable bias (asking to have Judge Walker’s decision vacated, in district court) and challenging his application of the law (appeal to the Court of Appeals for the Ninth Circuit; San Francisco). Much of the case boils down to “questions of law” to which appellate courts review de novo. (Again, that means they look at them completely fresh). At the appellate level, Judge Walker’s determinations would essentially be given no deference there. However, Judge Walker also listed many “findings of fact.” These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” There is a good chance that the “findings of fact” will be re-visited because Judge Walker essentially assigned no weight to any of the testimony, findings, and arguments of the proponents, shrugging them off as merely the views of a homophobic, morally-righteous, bigoted and outwardly discriminatory” group of people. People living in the real world would have concluded and weighed the facts very much differently. There would have at least been meaningful, robust discussion.

At this point in the appellate process, however, the Court of Appeals for the Ninth Circuit must determine whether or not ProtectMarriage in fact has “standing” to defend the law in court. The State of California has refused to enforce the law or defend it in court, and as a result, ProtectMarriage, a strong supporter of the law, has decided to step up to defend it. “Standing” is a requirement that any plaintiff or challenger must show to bring a lawsuit. The party must demonstrate a sufficient connection to and harm from the law or action. The party must show that it has been “directly or indirectly harmed by a ruling or law.” The Court of Appeals ordered the California Supreme Court to determine the standing of ProtectMarriage and it is expected to make that determination in the early fall. The case would then go back to the Court of Appeals. Regardless of the outcome, it is expected to make it to the Supreme Court for the fall term (October 2011).

References:
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