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.
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.