Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
In a recent post on Law and Liberty, Mark Pulliam lambasted the idea of a more “rigorous standard of judicial review, across the board, when laws are challenged” called “judicial engagement.” He claims that those of us who advocate judicial engagement presume that judges are untainted by bias or personal predilections whereas they “are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state.”
Judicial engagement does not make any such presumption. Judges are no different from any other people. But the office of a judge is different. A judge has different incentives than a legislator because of the nature of his or her office, which renders him or her less vulnerable to manipulation by interest groups or political pressure.
First, most judges are appointed (at least at the federal level and in many states, including California). This alone means interest groups or other third parties are less able to get their hooks into that person through campaign donations. Second, judges have long terms in office—a lifetime at the federal level—which again limits the power of special interests groups with lots of money to threaten or incentivize judges. Legislators might rely on interest groups to give them money and without that money they may be unable to get reelected; judges don’t need to worry about that.
Additionally a judge has less personal investment in the specific legislation or even, in many cases, the policy area the legislation is about. The judge didn’t create the statute, and usually has not spent months or years advocating a given policy before trying to evaluate the statute’s constitutionality. The Supreme Court, in Williams v. Pennsylvania (2016), held that there is
a risk that the judge “would be so psychologically wedded” to his or her previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.”
Those same biases to avoid even the appearance of having erred could reasonably lead to the same risk if a legislator were trying to evaluate the constitutionality of legislation that he or she supported and sponsored.
The proper role of a judge is almost never as a “policymaker,” and Pulliam accurately describes many of the problems that can and do occur when judges try to take on that role. But “judicial engagement” doesn’t tell judges to invent whatever policies they wish to have in place. Instead, it merely stands for the notion that judges have a duty to read the statutes and the Constitution and do their best to make their own judgment as to the meaning of those statutes in light of the Constitution, and enforce that judgment with the powers they have. It emphasizes that when a judge swears an oath to “to support this Constitution” (as Article VI requires), this imposes a personal duty to decide for herself the meaning of the Constitution and to defend that meaning with all the powers of the office. It is a judge’s duty is to “say what the law is” without regard for deference to any other person, regardless of his or her office.
Now, I said “almost never” because all states but Louisiana live under the common law. Under a common law system of government, judges do have the power to create new torts or new defenses without any basis in statutory or constitutional law. This is usually a bad thing, for the reasons Pulliam gives as judges as policymakers—not to mention to due process concerns. But judges also have the ability to make exceptions for special cases that may not be seen in advance, or to punish wrongful conduct that no one could have anticipated occurring.
So far in this country we have mostly agreed that the extra flexibility of common law judging outweighs the costs. Louisiana, with its civil law system, does not give judges that flexibility. Clearly if Louisiana can do it, other states could as well—and if you disagree with giving judges that flexibility you should complain to your state legislature—or ask for a state constitutional amendment. But this isn’t something to blame on judicial engagement; instead go ask your legislature to switch to a civil law system if that is what you want.
Even with judicial engagement, judges must also respect the limits of their own powers.
First, judges should never control how much money is spent by the government. The power of the purse must always be in the hands of the legislature.
Second, judges should never be able to initiate criminal proceedings against any individual—that is the core of the executive power of the sword.
Third, every judge should be able to localize the exact words of the statute or part of the Constitution that he or she is interpreting to lead to the result he or she claims.
Fourth, judges cannot stop the legislature from repealing a statute. Judges can rule that parts of the remaining statutes are unconstitutional without the missing section but cannot keep the old law. If the legislature disagrees with the judicial interpretation of a statute, it must be able to amend that statute to repudiate the judicial decision—if necessary, by removing the provision the judge purports to rely upon.
There are other checks on judicial power, like at the federal level the ability of Congress and the President to remove a court’s jurisdiction—which the courts are then bound to respect.
If a judge refuses to respect such limits, he or she should be removed from the bench by impeachment. But as long as judges respect these limits, the damage that bad judges can do is limited by the political system.
Let’s go through the parade of horribles that Mark Pulliam gives. I don’t know the proper interpretation of California’s Labor Code section 2922, but why did the California legislature not ever amend this statute after the judges made this decision? Is it possible that the legislature actually agreed with the judges? Statutory interpretation doesn’t usually impose much risk long-term because legislatures can amend and clarify (or abolish) the underlying statute.
The various contractual defenses—including “unconscionability”—are merely judges acting in a common law capacity to actually create law. There is nothing in judicial engagement that supports, defends, or encourages this activity. But as long as we have a common law system, such new defenses created by judges will be allowed to continue.
The last two issues raised deal with the highest judicial power, the power of judges to strike down what they consider to be unconstitutional statutes. Although I do think that at least the federal Constitution’s Equal Protection Clause requires gay individuals to be treated the same as straight individuals in the provision of marriage licenses, I will assume for now that I won’t be able to convince Pulliam of the merits of that opinion. Instead, I will simply ask whether he thinks a judge can ever strike down a statute that he or she believes is unconstitutional? Where is the source of that power?
To me, when a judge “strikes down” a statute, it is merely the judge coming to a conclusion that the statute is at irreconcilable variance with the judge’s interpretation of the Constitution. And because we all recognize that the statutory authority is the Constitution, it is proper for the judge to set aside the statute in obedience to the Constitution. The source of this “power” is the Oath Clause, under which judges take upon themselves the duty to do just this.
Let’s assume we had a very strong form of judicial restraint and judges only struck down a statute when they were really sure that the statute was unconstitutional. Did the judges in the California gay marriage case not consider themselves really sure? They sure seemed at least subjectively self-confident to me. Why would the result in the cases Pulliam cites be any different even under a “very strong” standard of judicial restraint considering that the judges in this case at least personally felt so sure they were right?
No, the correct answer is not to try and draw some magical line between “kinda sure” and “really sure.” Such distinctions exist only in the mind of the judge and no other person could ever really know if a judge were subjectively less sure of the meaning than he or she claims to be. Instead, the right way to attack the opinion is on the merits: if you think the judge is wrong then just say that and explain why.
Now, we can point to a variety of constitutional clauses that are somewhat vague—the Ninth Amendment, the Privileges or Immunities Clause, and the Due Process Clause, among others. Each of these clauses has a meaning, rather than being a mere inkblot that Robert Bork described the Ninth Amendment as. But that is a debate for another day. For now, let’s focus on the judge’s duty.