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The Passive Aggressive Vices

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Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.

In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash.  The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor  that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.

When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them.  These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.  It is obviously harder for the Supreme Court to make a decision that would take away a right that had already vested. And even if the Court decided to act only prospectively, it is harder to deny a right to the couples in Court’s case, when similarly situated couples would retain the advantage of it.

When the Sixth Circuit Court of Appeals decided against the right to same sex marriage, the Court then took the case to resolve the circuit split. But even so, yesterday it refused to stay the decision in Alabama until it rendered judgment on the merits of the issue.. As Justice Clarence Thomas wrote in dissenting from the refusal to grant the stay, it is in general the practice of the Court to stay decisions against the constitutionality of a state law. Moreover, Alabama had a stronger case than usual for preserving the status quo, as the Court had already committed to resolve the issue in short order. But staying this decision would not be in keeping with the strategy the majority of the Court has pursued since Windsor: using its motion practice to create more momentum to support the decision it will make.

Alexander Bickel famously celebrated the Supreme Court’s passive virtues—a refusal to rule on an issue if it thought that the political processes could make intervention unnecessary. As he wrote in a Foreword to the Harvard Law Review, “The point is that the job of the Court, even in a perfectly real, concrete, and fully developed controversy, is not to resolve issues on which the political processes are in deadlock, but to do what it can to break that deadlock, so that the political institutions may make their decision before the Court is required to pass judgment on its validity.”

The passive virtues can be criticized as a departure from the rule of law, because the Court must manipulate the law for the pragmatic purpose of promoting judicial restraint. No one could accuse our current Supreme Court of that latter objective. Instead it is manipulating the judicial process to avoid criticism and backlash from political institutions for a decision which it has likely already made, but which it will announce in the time and manner best suited to maximize own institutional advantage.

Reader Discussion

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on February 10, 2015 at 17:16:28 pm

Thank you for sharing your thoughts on this issue. I will continue to keep my eye on Alabama to see how it plays out.

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Lauren
on February 11, 2015 at 22:20:03 pm

McGinnis's assessment of the Court's strategy seems plausible to me, perhaps even the most plausible.

Query: Is there a better strategy? Recall the Supreme Court ducked issuing Brown v. Bd of Education until after a presidential election, thereby keeping the matter from becoming a cause for demagoguery during the presidential campaign. Was this an appropriate role for the Court to play?

The more general question, as posed by the Crits: Should a judge concern herself with the practical consequences of her decisions at all? Or should she rule and let the chips fall where they may? And in particular, should a judge concern herself with whether the public regards her rulings, and her institution, as legitimate?

The Crits seemed to answer this last question in the negative. Indeed, they seem to favor prompting a modicum of cynicism in the public, letting people know that a judge is not some supernatually wise being, but rather is just a "failed politicians in a dress."

I find this perspective kind of bracing, but fear that the Crits fail to understand the social role of the institution they criticize. Perhaps courts should not be judged relative to the standard of divine justice, but rather relative to other forms of conflict resolution, such as war. From this perspective, it becomes clear that the people who are too idealistic are not the public, but the Crits themselves. As Ferguson shows, the result of de-mythologizing the legal system is not a sadder-but-wiser public; the result is rioting.

If you embrace this perspective, then you go meta-Crit: Yes, courts are imperfect, but riots are worse. Thus, we need judges to encourage the public to accept their rulings because ultimately the legal system is merely an exercise in crowd control. Their primary virtue is not wisdom or fairness, but reaching resolutions that compare favorable to riots. And if this means manipulating the public, infantalizing them, and short-circuiting what little critical thinking capacity the public can muster, so be it.

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nobody.really
on February 12, 2015 at 10:59:08 am

Oh, you mean something like this from that silly Justice Ginsburg:

http://www.nationalreview.com/bench-memos/398455/ginsburgs-astounding-indiscretion-ed-whelan

I also take it that YOU are NOT part of the uncritical thinking public.

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gabe
on February 12, 2015 at 11:53:54 am

Oh, you mean something like this from that silly Justice Ginsburg:

http://www.nationalreview.com/bench-memos/398455/ginsburgs-astounding-indiscretion-ed-whelan

Well, yes and no.

Yes, arguably it makes sense for judges to consider the practical consequences of their actions. In this context, it makes sense that Ginsburg would consider the consequences of finding that states must not discriminate on the basis of gender in granting certain marriage-related rights.

But no, precisely because judges should consider the practical consequences of their actions, Ginsburg might want to refrain from publicly disclosing that she has engaged in such speculation. That is, after all, the thing Ed Whelan characterizes as “unbelievable”: not that a judge would have such thoughts, but that a judge would acknowledge having such thoughts. This kind of candor tears away the supernatural aura of disinterest that we want to imagine judges have.

I also take it that YOU are NOT part of the uncritical thinking public.

Quite right. I’ve very critical.

And very private.

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nobody.really
on February 12, 2015 at 13:04:28 pm

Well, you got the joke (turned in on itself) but missed the embedded critique.

It is not the "supernatural aura" that is discomfiting; rather it is the assumption / belief that the public is not capable of critical thinking that is at issue here.
It shows itself in the disdain that Ginsburg and Kennedy (witness his "animus" comments on SSM cases) exhibit for their fellow citizens. Thus, so much of this "passivity" masquerading as astute political maneuvering in defense of the *status* of the Court as an *institution may be nothing more than the Courts way of (to their mind) holding off the *riot(ing)* rabble until such time as they may either tire of, or forget, the matter.
And so we are once again subject to the diktats of the expert class - after all, they are capable of critical thinking - well, at least it may truly be said that they are capable of criticizing their fellow citizens.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.