The real judicial putsch...

Many 2000 election irredentists are fond of using the term "judicial putsch" to characterize the US Supreme Court's decision to stop the Florida recounts and bring the election to its eventual end.   Of course, I disagree with this view, but the emotional power of the phrase is compelling; conjuring up images of Hitler's ill-fated 1924 "beer hall putsch" in Munich.   However, a real judicial putsch is happening in America, led by activist state courts interpreting state constitutions to usurp powers traditionally reserved to the legislative and executive branches of government.   Hyperbole?   Maybe, but how else would you describe situations where a court orders state legislatures to draft legislation or appropriate funds based upon the court's interpretation of vague and general language contained in the state's constitution?   (And you always thought that legislators are the ones that are supposed to write the laws and authorize spending under our tripartite system of government, silly you.)   Let me give you two recent examples:

On Tuesday, Massachusett's Supreme Court ruled 4 to 3 that its previous order, directing the state's legislature to pass a law authorizing gay marriages, could not satisfied by a law authorizing "civil unions" for same-sex couples.   (See this report in today's NYT for details on the decision.)   Last November, this court had ruled in the Goodridge case which precipitated the current action as follows:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage...

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same-sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.

The court's rationale for this decision was based upon the view that excluding same sex marriage represented an "arbitrary and capricious" exercise of state power that does not meet the "rational basis test [which] requires that 'an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.' "   Among the rational bases for banning same sex marriage that the court rejected is the contention that a heterosexual marriage provides the best environment for raising kids:

"...confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy."

Oh really?   No impartial legislator could have any logical basis for thinking that opposite-sex marriages are the best environment for raising kids?   Whether or not you agree with this contention (and I personally believe that there are many excellent parents in same-sex relationships) is it reasonable to conclude that it is implausible that the traditional family may be the best home environment for children?   I think not.

Now this is not an argument on the merits of same-sex marriage.   I believe that same-sex couples should be allowed to marry and have all the rights, privileges and obligations thereof.   I also don't really care whether you call a same-sex marriage a "civil union" or just a plain-old marriage.   But there are many people who do care, and care deeply.   And in a democratic society, these questions are resolved by elected legislators who are given the job of making laws.   If they pass bad laws, they can be voted out of office and replaced by new legislators who will amend or repeal the law.   For this reason, Article 30 of the Massachusetts constitution plainly states:

Article XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Here is another recent example, closer to home.   Last June, New York's Court of Appeals ruled that the state's system of funding the New York City school system violated the state's constitution.   This decision was based upon the court's interpretation of Article 11, section one of the NY state constitution, which states, in its entirety:

The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.

Upon this rather sparse constitutional scaffold, the court system, after eight years of litigation, 72 witnesses and 4,300 exhibits, concluded that NYC schools were being screwed by the state and the state had to come up with more money.

Writing for the majority, Chief Judge Judith Kaye ordered:

Reforms to the current system of financing school funding and managing schools should address the shortcomings of the current system by ensuring, as a part of that process, that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education. Finally, the new scheme should ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education.

The process of determining the actual cost of providing a sound basic education in New York City and enacting appropriate reforms naturally cannot be completed overnight, and we therefore recognize that defendants should have until July 30, 2004 to implement the necessary measures.

Now I don't want to defend the current system for providing state aid to local schools.   In fact, NYC had been getting screwed by the system in the sense of getting a less than proportional share of state funding.   But that injustice was done in an honorable, time-tested way; through the horsetrading process of having an elected legislature negotiate a budget and having that budget signed by an elected governor.   If citizens were unhappy about the outcome of this process (and they should be, since the state has been unable to pass a budget on time for 19 consecutive years and the budgetary "process" largely consists of completely opaque backroom bargaining between the Governor and the leaders of the state Assembly and state Senate), they can always get off their duffs and throw the bastards out at the next election.   Shortcutting the painful, slow process of political democracy by having appointed judges, serving 14 year terms, rule by fiat may solve the immediate problem; but it certainly is not democratic.   And what do you do when the judges (being human after all), get it wrong?

Judge Susan Read, writing in dissent, framed the issue very eloquently:

Trial judges and appellate courts are well suited to assess criminal responsibility in accordance with proscribed procedures; to assign liability for breaches of duty; to extrapolate legislative intent; or to interpret commercial agreements. Each dispute is based on fact and law. They are not, however, well suited to make the subtle judgments inherent in education policymaking, or to assess how the State of New York may best allocate its limited resources to meet its citizens' educational and other pressing needs.

Of course, the majority sincerely sees itself as interpreting constitutional commands, a proper and solemn judicial function, not as making policy choices and value judgments constitutionally committed to the other branches of government. In my view, however, by this decision, the majority has allowed its deep sympathy for educational excellence to overwhelm its sense of the proper and practical limits of the judicial function.

When you have unelected judges, often appointed for life, making laws, the result is not what most people would call a democracy.   Rather it is "a government of men, and not law" where in place of a monarch, we have judges deciding public policy guided by their individual sense of natural justice and based upon the information presented to them in a court of law, under the rules of evidence, in an adversary system.   Certainly this is a system of government; its just not the one envisioned by the framers.   And it is certainly not democratic.