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Sunday, January 01, 2012

Running into court and running against the courts

How can you base a presidential campaign on 1) bringing unaccountable out-of-control federal judges to heel and 2) deferring to state authority to legislate, then run to those same federal judges at the first opportunity asking them to invalidate an exercise of state power and a request for attorneys' fees? I am not questioning the merits of the candidates' First Amendment arguments against Virginia's ballot-access laws, their right to go to court and ask a judge to grant them a remedy, or their right to seek attorneys' fees if they prevail. But how do you reconcile your exercise of that right with a uniform, loud, policy-level opposition to the general exercise of those same rights by others or the judges' power to grant those other people relief?

I suppose the response from Rick Perry (and Newt Gingrich and the other candidates expected to intervene in the lawsuit) is that their opposition is to meritless and frivolous lawsuits and judges making bad decisions invalidating important state laws based on made-up constitutional rights. Perry hinted at this in announcing the lawsuit, insisting he "greatly respects the citizens and history of the Commonwealth of Virginia," presumably unlike all those other people who file lawsuits because they disrespect the citizens and history of the state. Of course, respectful or not, they're all insisting that some state law is invalid and that a federal court has, and should wield, the power to enjoin enforcement of that law.

Assuming Perry, et al., prevail and the federal courts invalidate Virginia law, on what logic are these judges any less unaccountable and activist than in all the other suits that the candidates have criticized? Do you think Gingrich would feel comfortable litigating before a judge who knew that, if she ruled the "wrong" way, she would dragged by a federal marshal to explain herself to a Democratic Congress? Unless the criticism of judges and activism really is nothing more than criticism of decisions with which they disagree?

Posted by Howard Wasserman on January 1, 2012 at 09:37 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


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Good point on the irony. But I wonder if you perhaps take the argument a little too far and are mixing up issues. Gingrich et al. would say there is a perfectly coherent logic they have put forward: "follow the text" and rule for the plaintiff is the constitutional text demands it and not otherwise. You and I know that this principle is far harder to apply and less determinate than Gingrich et al. pretends, but I don't think it is right to say that they have put forward no logic and that they rely on "nothing more" than ideological disagreement. If you want to say the "follow the text" principle is nothing more than cover for ideological disagreement, then you need to pay dues to the CLS scholars club.

As for whether Gingrich would feel comfortable with his judges being dragged in front of a Democratic congress, that is a wholly separate issue. There, the question is not whether there is a neutral principle that can be applied. It is whether judges who are given incentives for bias can be expected to apply the neutral principle even if there was one.

Posted by: TJ | Jan 1, 2012 2:23:44 PM

I thought about "follow the text" as the likely response. But one of the problem issues Gingrich (for one, maybe others) has pointed to is same-sex marriage. Concluding that "equal protection of laws" is violated
by a law denying LGBT something that straight people receive is at least as textually grounded as concluding that "the freedom of speech" is violated by a law regulating the number and nature of signatures required for a person to get on an electoral ballot.

Posted by: Howard Wasserman | Jan 1, 2012 2:50:20 PM

Wait, are you telling me that there are politicians taking inconsistent positions!? I'm shocked! Shocked!

Posted by: Anon | Jan 1, 2012 3:51:37 PM

Wait, are you telling me that there are politicians taking inconsistent positions!? I'm shocked! Shocked!

Posted by: Patrick Luff | Jan 1, 2012 3:56:37 PM

Howard, saying that "equal protection of law" necessarily mandates allowing same-sex marriage is a bit of a stretch, and remains a stretch even if you think that a 10,000 signature requirement violates "freedom of speech."

First, lets consider the textual argument for same sex marriage without bringing the freedom of speech issue into play. I can see a good argument that "equal protection" could be interpreted to support same sex marriage, but I wouldn't call that argument a slam dunk even textually, since every law draws distinctions and in that sense denies "equal protection" to somebody. The question is which distinctions are permitted and which are not, a question that con law scholars spend a lot of time trying to work all sorts of convoluted tests to answer. But that is only illustrating the point that Gingrich et al.'s "follow the text" formulation is simplistic and far harder to apply in reality than he allows. It does not follow that he has advocated no principle at all.

So then your point seems to be that he necessarily contradicts his advocated principle by arguing that "freedom of speech" limits voter registration requirements. But I really quite doubt that. It seems that you are saying that nobody can coherently advocate that the constitutional text--infused with some sort of context and original intent and all that good stuff (and no respectable con law scholar is a wooden textualist who says text and absolutely nothing else)--limits excessively burdensome requirements of ballot access but does not mandate same sex marriage. That is hard for me to swallow as an absolute proposition.

Posted by: TJ | Jan 1, 2012 5:34:19 PM

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