Strauss v. Horton: Law, Politics and Prop 8, part II

As promised, here is part 2 of my analysis of the upcoming review of Proposition 8, Strauss v. Horton. In this post, I will look at some of the political winds that are influencing the court.

The first question that a lot of people ask is why, if the court is inclined to overturn Proposition 8, would they have let the initiative go to a vote? A group of litigants tried to get the Court to hear the revision challenge before the vote took place in a case called Bennett v. Bowen. The court denied their request for hearing, ruling that proposition 8 hadn't passed and so was not yet a live controversy. Judicial action was therefore not yet proper. This is a judicial doctrine known as ripeness. There are very few exceptions that would allow the court to take jurisdiction over a potential dispute; this issue did not fall into any of those exceptions.

But now, the dispute isn't just potential, it is live and the Court can now hear it. While courts are meant to be independent of political pressure, even the most isolated of courts would feel the politics of this decision weighing on them. The court has a lot of institutional pressure to strike down Proposition 8, but would expend a lot of political capital if it strikes the initiative down.

The foundation of the judiciary's power is moral legitimacy. The judiciary has no way of enforcing its own orders; its orders are upheld because the other branches of government and the people in general view the decisions of courts as binding, final, and authoritative. To that end, a court protecting its own legitimacy must take into account the effect that its decisions would have in building and maintaining its moral legitimacy. Specifically, a court must balance the perception of being a final and binding authority on the one hand and not appearing to be an unaccountable dictator on the other. Weighing on the final and binding authority side, the court has an interest in not having its decisions overturned. Many times, judges will even strike down attempts to override past decisions where that particular judge was in the minority. While the judge may disagree with the prior decision, protecting the right of the court to make that decision may prove to be a higher value for the judge than overturning the prior decision. Especially in this case, where the question of whether the court correctly decided that gays and lesbians constitute a suspect class is not before the court, even some justices who were in the minority in the previous case may be tempted to strike down Proposition 8 now that that status is a matter of settled law. As I mentioned in part one, I don't think the Court has left itself a lot of wiggle room in its previous opinion to uphold Prop 8, and if they do uphold it, they look weak and indecisive--not a good position for a court to be in.

On the other hand, to strike down Proposition 8, the court would have to invalidate the will of the majority of California voters. Overturning Proposition 8 will necessarily cost more in terms of public perception than would a statute passed by the legislature or something that had a lower profile. In fact, there is a movement afoot by supporters of Proposition 8 to recall any of the justices who vote to strike down the initiative. Given the propensity for craziness in the California recall system (see, e.g., Gray Davis), this is probably not an idle threat.

So what's a court to do? If the court is inclined to overturn Prop. 8 (I think they are), They need as much cover as possible. When courts make important and unpopular decisions (See Brown v. Board of Education and U.S. v. Nixon), the tendency is to speak with one voice. Look for any opinion overturning Proposition 8 to be a 7-0 or 6-1 opinion. This will necessarily entail coalition building and compromise, so look for a decision to take some time. Finally, it may be that the recall threat will actually backfire--a blatant attempt to coerce a judge to rule one way or another tends to bring out belligerence in the people whose job it is to ensure an independent judiciary.

In sum, I think there are a lot of non-legal factors that can push the court one way or another, and these are important things to consider when predicting how the review of Proposition 8 will turn out. Thoughts?