Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Vetoing Democracy: Justice Robertsís clumsy opinion threatens the initiative process in 26 states
National Review ^ | 06/27/2013 | John Fund

Posted on 06/27/2013 8:18:24 AM PDT by SeekAndFind

Chief Justice John Roberts has done it again. His twisted reasoning in last year’s Obamacare ruling wasn’t the only unpleasant surprise he’s sprung on supporters of the rule of law.

His majority 5-to-4 opinion in California’s Proposition 8 case — throwing the issue back to California because plaintiffs lacked standing to argue in his court — is as bizarre as his Obamacare decision. His opinion was joined by an ideological tossed salad of justices that ranged from Ruth Bader Ginsburg to Antonin Scalia. But the fact that its list of supporters is unusual doesn’t mean it won’t present real problems for both liberals and conservatives when it comes to democratic freedoms. Has the initiative process in 26 states now been fatally undermined?

Chief Justice Roberts’s opinion held that supporters of Proposition 8, which 52 percent of California voters used in 2008 to define marriage as between only a man and a woman, lacked standing to defend the measure in federal court after state officials refused to defend the law in court. Supporters could fight for Prop 8 in California courts, the court said, because California recognized their standing, but they can’t appeal in federal court because they don’t have standing that meets federal rules. Since a federal district court had previously ruled Proposition 8 unconstitutional, supporters of gay marriage claim the Supreme Court has effectively made gay marriage the law in California.

Governor Jerry Brown is already ordering clerks to issue marriage licenses to gays in California, a bold step given that it’s unclear the federal district court had the power to extend gay marriage to anyone other than the specific people involved in the suit. But that’s for other courts to sort out in a year or so; for now, Brown is trying to make a show of force that he hopes courts won’t dare challenge. In California, the initiative process was started in 1911 specifically to pass laws that the governor, other state officials, and the legislature didn’t want to pass. As Justice Anthony Kennedy, who is from California, points out in his dissent to the Roberts opinion: “The initiative system ‘grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.’”

Well, that belief will now reassert itself in the wake of Roberts’s opinion.

In the case of Prop 8, Governor Brown, Democratic attorney general Kamala Harris, and the Democratic legislature all refused to defend in court the ban on gay marriage. That’s why the state supreme court unanimously allowed the proponents of Prop 8 to defend it in court, a decision that was ratified by the liberal federal Ninth Circuit Court of Appeals when the Prop 8 case was heard there on its way to the Supreme Court.

Justice Kennedy said during oral argument in the Prop 8 case last March that not granting standing to the proponents of Prop 8 in federal court would have dangerous implications, what he called “a one-way ratchet.” All state officials have to do is refuse to defend a law passed by the people, watch as those seeking to overturn the law go judge-shopping (Prop 8 opponents found a gay judge in San Francisco who did not disclose his sexual orientation), and then watch the proponents of the initiative lose in federal court because they “lack standing” to represent the law they wrote.

Justice Kennedy, in his dissent from the majority, warned that “the Court’s decision also has implications for the 26 other states that have an initiative or popular referendum system, and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.” Kevin Drum, a blogger for the liberal Mother Jones magazine, notes that he is in favor of gay marriage, but that the Supreme Court’s “gutting” of the people’s right to defend their own initiatives “has neither the flavor of justice nor of democratic governance.”

Others are already raising the alarm. Bill Jurkovich, a voter in Citrus Heights, Calif., says: “Apparently, we the people do not have the right to create a law that the political elite disagree with. Is it any wonder that people are becoming radicalized, have lost faith with the political process, distrust government, and do not vote?” Indeed, the California supreme court has in the past ruled that “if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged . . . this de facto veto will erode one of the cornerstones of the State’s governmental structure.”

The California supreme court went on to say: “In light of the frequency with which initiatives’ opponents resort to litigation” — over one-third of the initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court – “the impact of that veto could be substantial.”

John Eastman, a former dean of Chapman University’s law school, says he believes people of all political persuasions should worry about the “huge hole” Justice Roberts has blown in the initiative process in order to sidestep ruling on the merits of Proposition 8. “Someday, liberals could win an environmental-protection measure in a state and see a conservative governor and attorney general refuse to enforce or defend it,” he told me. “When that time comes, the proponents may seek their day in federal court and find that there’s only darkness because they lack any standing to defend their own law.”

The threat to the initiative process in 26 states is real. Starting with California, voters should quickly explore ways to craft some mechanism that will allow proponents to defend initiatives in court if elected officials refuse to do so. Sounds like a good subject for another initiative — and if such a measure were to pass, elected officials would probably be quite leery of trying to block it.

— John Fund is national-affairs columnist for NRO.


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events; US: California
KEYWORDS: homosexualagenda; johnroberts; prop8; robertscourt; ruling; scotus; statesrights

1 posted on 06/27/2013 8:18:24 AM PDT by SeekAndFind
[ Post Reply | Private Reply | View Replies]

To: SeekAndFind

Double-minded ruling by a double-minded Justice.


2 posted on 06/27/2013 8:21:43 AM PDT by stars & stripes forever ((Blessed is the nation whose God is the Lord!))
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

I’ve come to the conclusion that Roberts simply isn’t even a particularly good legal scholar, let alone someone with the skill and intellectual fortitude to mange the Supreme Court and be a capable Chief Justice.


3 posted on 06/27/2013 8:24:55 AM PDT by apillar
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind
Chief in-Justice John Robs Us. Thanks W Buuuuuuuuuuuuuuuuuush.

PS. Notice how the leftist SCOTUS judges never wobble--its always our supposedly conservative justices who dribble leftward. I'm sick of them and regret I only have two hands with the middle finger.

4 posted on 06/27/2013 8:25:06 AM PDT by tflabo (Truth or Tyranny)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind
The "people" absolutely have a way to defend their initiative: throw the freaking bums (gov and legislators) that won't do their job - defending a legally passed ballot initiative - out of office and replace them with officials that will. Very simple.

What's that you say - they keep electing the same reprobates that won't do their job? Sorry, then I got no sympathy.

5 posted on 06/27/2013 8:31:30 AM PDT by safeasthebanks ("The most rewarding part, was when he gave me my money!" - Dr. Nick)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

“Someday, liberals could win an environmental-protection measure in a state and see a conservative governor and attorney general refuse to enforce or defend it,” he told me. “When that time comes, the proponents may seek their day in federal court and find that there’s only darkness because they lack any standing to defend their own law.”

Nah, Republicans don’t have the guts. They always tell us it is now the law and they have to enforce it. Only communist/liberals get away with not enforcing laws.


6 posted on 06/27/2013 8:32:59 AM PDT by sheana
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

Which begs the question, why did the homosexual justices on the Supreme Court not recuse themselves?

HOMOSEXUAL, because there’s nothing GAY about it.


7 posted on 06/27/2013 8:33:03 AM PDT by JimRed (Excise the cancer before it kills us; feed &water the Tree of Liberty! TERM LIMITS, NOW & FOREVER!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

What baffles me is the argument. 87 congress members and a president are racist because sodomizers have rights ?

The Chief Justice can set the rule of the the arguments of merit to the case before the court. It’s done every day it’s known as “the judge won’t allow”. Because the administration now favors “gay marriage” I wouldn’t expect what could be called a healthy defence from them. Sodomy wasn’t the issue . The issue was protecting the integrity and intention of a basic unit of society through a mechanisim known as marriage to encourage familys.

What should we expect from a political party which itself has gone through a marriage with one world socialist radicals known to many as communists who can’t even use the word God. They’ve hyphenated into Demo-Coms.


8 posted on 06/27/2013 8:33:53 AM PDT by mosesdapoet (Serious contribution pause.Please continue onto meaningless venting no one reads.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

I don’t know what the left is using to blackmail Roberts but it is powerful stuff.

With his asinine decisions on Obamacare and Prop-8, Roberts has lost any stature and credibility he might have earned over the years.

He is making a bigger ass of himself than Marco Rubio is doing in his Gang-Of-Eight immigration debacle, and that is no mean feat.


9 posted on 06/27/2013 8:37:10 AM PDT by Iron Munro (Rubio's New Book: From Nobody To Senator, To Conservative savior, Then Back To Nobody")
[ Post Reply | Private Reply | To 1 | View Replies]

To: tflabo
Notice how the leftist SCOTUS judges never wobble--its always our supposedly conservative justices who dribble leftward.

True, with one caveat.

Roberts' abdication of his oath and duties isn't a dribble leftward - it is a gusher.

He has made a a fool of himself with his efforts to twist logic and rationalize decisions he knows to be bad.

Whatever Obama is using to blackmail him is working well - for Obama.

Roberts place in history will be found filed under "Obama's Chumps and Fools".


10 posted on 06/27/2013 8:44:04 AM PDT by Iron Munro (Rubio's New Book: From Nobody To Senator, To Conservative savior, Then Back To Nobody")
[ Post Reply | Private Reply | To 4 | View Replies]

To: SeekAndFind
I would like to hear how Roberts responds to this criticism.
This whole standing issue needs to be looked at. The people delegate authority to the government, they do not abdicate it.
11 posted on 06/27/2013 8:45:16 AM PDT by oldbrowser (We have a rogue government in Washington)
[ Post Reply | Private Reply | To 1 | View Replies]

To: tflabo; All; safeasthebanks; sheana

Scalia was the 5th vote with the majority. Read what he wrote.

“Governor Jerry Brown is already ordering clerks to issue marriage licenses to gays in California, a bold step”

The clerks have standing.


12 posted on 06/27/2013 8:47:37 AM PDT by campaignPete R-CT (we're the Beatniks now)
[ Post Reply | Private Reply | To 4 | View Replies]

To: SeekAndFind

Roberts is just odd. It absolutely creates this problem.

Having said that . . . I HATE the Prop system here in CA. Props are mob rule. People who have no responsibility for the decision, and have done almost NO research, pass laws based on TV commercials. The Prop system should be ended. Don’t like laws? Elect someone else.


13 posted on 06/27/2013 8:48:06 AM PDT by RIghtwardHo
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

Last I checked, this was a representative Republic, not a populist mobocracy. If the sheeple vote to take our money and our guns away, guys like Fund would get the point.


14 posted on 06/27/2013 8:50:23 AM PDT by Clemenza ("History, I believe, furnishes no example of a priest-ridden people maintaining a free civil governm)
[ Post Reply | Private Reply | To 1 | View Replies]

To: apillar
I’ve come to the conclusion that Roberts simply isn’t even a particularly good legal scholar, let alone someone with the skill and intellectual fortitude to mange the Supreme Court and be a capable Chief Justice.

In other words, until the Democrat Socialists are able to seat a leftist chief justice, Roberts will do just fine.

15 posted on 06/27/2013 8:52:10 AM PDT by glennaro
[ Post Reply | Private Reply | To 3 | View Replies]

To: SeekAndFind

It’s time for States to begin to assert their authority under the 10th amendment, and declare actions like these to be extra-constitutional abuses of (limited) Federal power.

There is no need to ask the Federal Government for permission to exercise duly granted State authorities, or to deny the enforcement of abusive legislation and judicial fiat.

Who will bell the cat?


16 posted on 06/27/2013 8:54:37 AM PDT by motor_racer (Pete, do you ever get tired, of the driving?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

My ONLY comfort in this decision is Roberts will stand before Almighty God some day, as we all will, and will he then tell God he doesn’t have standing?


17 posted on 06/27/2013 9:00:24 AM PDT by teletech (Say NO to RINOS!)
[ Post Reply | Private Reply | To 1 | View Replies]

with the current court membership, does anyone here WANT tHEM TO hear the case on its merits?

Kennedy and the 4 libs would vote for a right to gay marriage, nationally. Scalia was smart to get it punted back to California. Somebody with standing will sue or get sued. It will be back soon enough, hopefully with a new judge replacing a lib.

Kennedy turns 77 next month. Not old enough to die.


18 posted on 06/27/2013 9:15:00 AM PDT by campaignPete R-CT (we're the Beatniks now)
[ Post Reply | Private Reply | To 17 | View Replies]

To: SeekAndFind; Perseverando; Perdogg; Lurking Libertarian; JDW11235; Clairity; TheOldLady; ...

FReepmail me or Perdogg to subscribe to or unsubscribe from the SCOTUS ping list.

19 posted on 06/30/2013 12:24:40 PM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SeekAndFind

Remind me which Presidents gave us Kennedy and Roberts?

We have a Catholic/Jewish court, few of whom appear to follow the avowed teachings of their religion. Can’t we find a President who could appoint straight shooters?


20 posted on 06/30/2013 2:51:09 PM PDT by 1010RD (First, Do No Harm)
[ Post Reply | Private Reply | To 1 | View Replies]

To: 1010RD

Ronald Reagan gave us Kennedy; George W. Bush gave us Roberts.


21 posted on 08/05/2013 7:48:25 PM PDT by kevinw
[ Post Reply | Private Reply | To 20 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson