As we’ve just heard that Judge Sonia Sotomayor has been appointed to the Supreme Court, I am reminded of just how important the “counter-majoritarian branch” really is.  With the looming Prop 8 decision expected in just a few hours at 10AM, it can never be said that policy does not emerge from the judiciary.  Not matter how the court decides on Prop 8, the California Supreme Court is clearly making policy when it determines whether I am married or not.  There is no such thing as merely being an arbitrator, there are always shades of gray, and the requirement for a judge to apply their judgment.  After all, it is nearly impossible for one to stand in judgment without, um, judgment.

These things matter.  A lot. With respect to Sotomayor, it is already being argued that because she acknowledges that judges make policy, she should be rejected.

Conservative groups reacted with sharp criticism on Tuesday morning. “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is ]) more important than the law as written,” said Wendy E. Long, counsel to the Judicial Confirmation Network. “She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.” (NYT Caucus Blog 5/46/09)

The fact is that all signs point to Sotomayor being a centrist. Her opinions are a mish-mash of centrism. She notably ruled in favor of affirmative action, but has also repeatedly ruled against increasing civil liberties for prisoners. Unlike some of the other names discussed for the job, she is hardly a noted progressive like many of us would have preferred.

But here in California, policy is made all of the time in the courts, primarily because our elected leaders have been hamstrung by a disastrous structure of government but also by years of failed leadership on issues like the prison system. Years of the failed ToughOnCrime^TM policy and the unwillingness to put policy over politics left us with an absolute mess. Judge Thelton Henderson, a prominent NorCal district court judge, has consistently made more policy for our state prison system than the elected leaders.  

The prison receiver has been quietly building a stable system of health care within the state penal system. When the system finally leaves receivership, it is preparing to become a full fledged-state agency, the California Prison Health Care Services (CPHCS). You can check out more info on the receivership at their website; they even have a spiffy (1995-era PDF) newsletter. This is just one case of the judiciary being far more responsible, and facing the policy challenges.

The courts are there to protect those who need protection. The courts are there to block the tyranny of the majority.  Hopefully we’ll see that today.

This appeared in today’s edition of Capitol Weekly. As we approach the decision on Prop 8, it is important that we remember the critical role of the judiciary.

Back on Nov.12, Capitol Weekly published an opinion by the Flash Report’s Jon Fleischman entitled “When considering Proposition 8, remember Rose Bird.” His populist threat against a branch of government that is very intentionally designed to be counter-majoritarian deserves admiration for its moxie, if not its intellectual rigor.

Mr. Fleischman’s threat would be of little concern if it had been directed to the Governor or to a member of the Legislature. After all, the executive and legislative branches are supposed to be reflective of popular will. They are supposed to consider the will of their constituents when they make decisions. But by threatening judges, Mr. Fleischman attacks the important counter-majoritarian role that the judicial branch serves in our government. In so doing, he has attacked the foundations of our democracy and its delicately balanced separation of powers.

In drafting our nation’s constitution, James Madison urged protecting minority factions from the “tyranny of the majority.” In Federalist Number 10, Madison argues that under direct democracy, the rights of weaker minorities will inevitably be sacrificed on the altar of popular opinion.  Such democracies, said the father of our Constitution, “have in general been as short in their lives as they have been violent in their deaths.”

Throughout our country’s history, minorities have looked to the counter-majoritarian judicial branch to provide protections that the populist executive and legislative branches refused to provide. The most notable of these cases is Brown v. Board of Education. In 1954, the Supreme Court decided that racial segregation in schools was unlawful because it violated the Equal Protection Clause of the Fourteenth Amendment. Reaching this unanimous opinion required the Supreme Court to ignore strong public opinion in favor of segregation. In short, it required the Supreme Court to exercise its power as an independent and counter-majoritarian branch of government.

There’s more over the flip.

In his article, Mr. Fleischman asks “what kind of hubris would a Supreme Court Justice have to show to justify overthrowing a Constitutional Amendment (Proposition 8) as… unconstitutional?” Although rhetorical, this question demonstrates a critical lack of historical perspective. After all, the constitutional challenge to Proposition 8 is not the first time oppressed minorities have challenged a constitutional amendment passed through the initiative process. And when the Supreme Court strikes Proposition 8, it will not be the first time the courts have exercised their responsibility to temper the will of the majority by striking a constitutional amendment as . . . yes, unconstitutional.

In 1964, Proposition 14 passed with an overwhelming 65 percent of the vote. Supported by similar groups as Prop 8, including the California Republican Assembly, Proposition 14 repealed the Rumsford Fair Housing Act and amended the California Constitution to allow property owners the unfettered right to refuse to rent or sell to people based upon their race, religion, sex, or physical handicap. In striking down Prop 14, the Supreme Court found that the voters of California overstepped their constitutional authority and violated the Equal Protection Clause.

The obligation of the Supreme Court to protect minorities from the tyrannical will of the majority applies equally to Proposition 8. Supreme Court Justice Joyce Kennard made this point saliently in her concurring opinion in In Re: Marriage Cases when she said that “Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law or resolution by the judicial branch of state government.”

But the Chief Justice, at least, has faced this down before.  In 1998, the right-wing came after him because they disagreed with an abortion related opinion.  The conservative movement has a history of challenging judges from the right, without a similar response from the left. The net result is a pressure to drift to the right. However, Chief Justice George has done an admirable job of resisting the pressure and making his decisions based upon the law and the facts before him. While I can certainly say that there are a slew of his opinions that I strongly disagree with, his integrity in those decisions is beyond reproach.

So, to those like Mr. Fleischman who threaten the judiciary, consider the fact that you are attempting to throw dirt on the form of governance that Madison and our founders built for us hundreds of years ago.  Do we really want justices who only protect rights when it is politically convenient?  The independence of our judiciary is simply too important to risk for an ephemeral political issue.