Clever Chief Justice
They say a even a stopped clock is right twice a day. In the same vein, the National Review Online's John Fund is right twice a year, and the most recent was on Tuesday, when he recognized the decision by John Roberts in refusing to overturn Proposition 8 as an affront to democracy. Kevin Drum, unlike Fund a supporter of same-sex marriage, explains
the Supreme Court declined to allow supporters of California's Proposition 8, which banned gay marriage, to appeal their case in federal court. Supporters could defend Prop 8 in the initial suit in California, the court said, because California recognized their standing, but they aren't allowed to appeal their loss because they don't have appellate standing according to federal rules. Since a district court had previously ruled Prop. 8 unconstitutional, this means the issue has been decided. Gay marriage is legal in California.
Fund commends Justice Anthony Kennedy, who in his minority opinion maintained
The Court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court's decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.
Similarly, Drum observes "the Supreme Court is basically gutting the people's right to pass initiatives that elected officials don't like and then to defend them all the way to the highest court in the land." Fund is only too pleased to quote a former law school dean who told him
Someday, liberals could win an environmental-protection measure in a state and see a conservative governor and attorney general refuse to enforce or defend it. When that time comes, the proponents may seek their day in federal court and find that there’s only darkness because they lack any standing to defend their own law.
Already one individual is using Roberts' eccentric reasoning toward a rather illiberal end. Following the Chief Justice's opinion to its logical conclusion. On Tuesday, according to Think Progress' Ian Millhiser, Paula
Deen filed a notice with the federal court hearing a race discrimination lawsuit against her, suggesting that the court should dismiss this lawsuit in light of the Supreme Court’s ruling in the Prop 8 case. Last week, the Court explained that “for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm.”
Deen is employing the precedent to claim that the white plaintiff who is suing her, Lisa Jackson,cannot bring a race discrimination suit alleging animus against African-Americans because she is not personally injured by racism directed at people of another race.
At one time, they would call this "what's good for the goose is good for the gander." And this is not the first time the Chief Justice has employed reasoning from the right to reach a conclusion adored by progressives. While criticizing Roberts' approach to California's Prop 8, Fund identifies the Chief Justice's "twisted reasoning in last year’s Obamacare ruling" though, unfortunately, he fails to define or explain the "twisted reasoning."
There is no doubt, however, that the conservative Fund was not referring to the Court's decision that states cannot be cut off from Medicaid funding because they choose not to expand Medicaid to individuals earning as much as 130% of the federal poverty guidelines. If sensible, he finds twisted the idea that fining someone for not purchasing health care is a tax. It is, of course, a penalty, intended not to raise money (as in a tax) but to get people to purchase a good or service.
But the Chief Justice had other ideas and, as he undoubtedly realized, rejecting the commerce clause as basis of the health care mandate would likely have severe repercussions upon the ability of Congress to legislate on behalf of the welfare of the American people. And so, too, did he understand, as Fund recognizes
All state officials have to do is refuse to defend a law passed by the people, watch as those seeking to overturn the law go judge-shopping (Prop 8 opponents found a gay judge in San Francisco who did not disclose his sexual orientation), and then watch the proponents of the initiative lose in federal court because they “lack standing” to represent the law they wrote.
The system of initiative and referendum has had both humanizing and dehumanizing effects, sometimes with unintended consequences. Still, there will come a time when an initiative such as requiring labeling of products with genetically modified ingredients will be approved, a state court will overturn it, a GOP or neo-liberal state government will refuse to endorse it, and the Supreme Court will refuse to grant standing in federal court to a group wanting the public will to prevail. At that time, perhaps the left will recognize the twisted reasoning of Chief Justice Roberts. Maybe not, though, given his decision to allow in California fulfillment of one of the left's two most fervent causes of the day.