Skip to comments.Vetoing Democracy: Justice Robertsís clumsy opinion threatens the initiative process in 26 states
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 years Obamacare ruling wasnt the only unpleasant surprise hes sprung on supporters of the rule of law.
His majority 5-to-4 opinion in Californias 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 doesnt mean it wont 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 Robertss 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 cant appeal in federal court because they dont 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 its unclear the federal district court had the power to extend gay marriage to anyone other than the specific people involved in the suit. But thats 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 wont dare challenge. In California, the initiative process was started in 1911 specifically to pass laws that the governor, other state officials, and the legislature didnt 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 Robertss 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. Thats 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 Courts 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 Courts gutting of the peoples 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 States 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 Universitys 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 theres 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.
Double-minded ruling by a double-minded Justice.
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.
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.
What's that you say - they keep electing the same reprobates that won't do their job? Sorry, then I got no sympathy.
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 theres 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.
Which begs the question, why did the homosexual justices on the Supreme Court not recuse themselves?
HOMOSEXUAL, because there’s nothing GAY about it.
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. Its done every day its known as the judge wont allow. Because the administration now favors gay marriage I wouldnt expect what could be called a healthy defence from them. Sodomy wasnt 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 cant even use the word God. Theyve hyphenated into Demo-Coms.
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.
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".
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.
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.
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.
In other words, until the Democrat Socialists are able to seat a leftist chief justice, Roberts will do just fine.
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?
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?
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.
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?
Ronald Reagan gave us Kennedy; George W. Bush gave us Roberts.