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Wednesday, September 07, 2005

We Love Courts, Yes We Do!

Because the issues of same-sex marriage and legislatures vs. courts are of deep interest to me, I am going to address Dan Markel's question in this post rather than in a comment.

Dan writes:

A spokeswoman for Mr. Schwarzenegger, Margita Thompson, said after the vote that the governor believed that the issue of same-sex marriage should be settled by the courts, not legislators, but she did not indicate whether that meant he would veto the legislation. The bill did not pass with enough votes to override a veto. "The governor will uphold whatever the court decides," Ms. Thompson said. 

I confess I am curious about how the Governor reached this decision to punt it to the courts.   Presumably, those people who say that abortion rights should be determined in state legislatures not courts (and this would include liberals and conservatives) would agree that marriage rights should similarly be determined in the state house, and not the court house.  After all, the thinking goes, neither of these issues are directly addressed in the federal Constitution.  (I'm not sure if the CA constitution has something directly on point).  Anyone have an idea for a political and/or legal rationale for Arnold's views here?

Frankly, I think the reason is obvious: Arnold doesn't want the heat.  In fact, that's why legislators, even those who regularly denounce courts, secretly love judges and courts.  When courts rule, they deflect attention from legislators.  For this reason, legislators regularly leave contentious issues unaddressed in legislation.  Unfortunately, courts are all too eager to let the legislators get away with it.  For those interested, I've discussed this issue at greater length previously.  Here is a flavor:

However, Congress has developed a culture in which statutes are drafted poorly and ambiguously, necessarily leaving them open to multiple interpretations.   

There are two reasons for this.  First, enacting legislation in the face of competing interests and a closely divided legislature and electorate is no easy task. 

Sometimes there is no way to get the necessary majority or supermajority if contested issues must be hashed out at the beginning.  Legislators are all too happy to duck the most difficult issues and avoid the political fallout and allow courts to "interpret away" any ambiguities.   

Second, courts encourage this behavior by making themselves available to step in to "save the day" and interpret away ambiguities.   As much as legislators denounce "activist judges" who "make law by interpreting it," the lawmakers wouldn't have it any other way.

In short, there is a symbiotic relationship in which legislators have incentives to leave ambiguities in texts, and courts accommodate them. The key, of course, is to make Congress write better laws.

This way, Arnold gets to look like a law-and-order kind guy, but actually turns out to be something of a sissy.

But, in the end, he will have to decide whether to veto, sign, or pocket-veto the legislation (assuming California has such a provision).  My bet is on the pocket-veto, again in an attempt to avoid political fallout.

Posted by Hillel Levin on September 7, 2005 at 02:00 PM in Hillel Levin | Permalink


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Good comments all, and well taken.

I certainly agree that perspective on this issue should have nothing to do with political beliefs and commitments, and I aspire towards that goal. That's why I'm a proceduralist at heart. I'm more concerned about how decisions get made than which decisions get made. (Well, that's not entirely true, of course. But it is a general statement.)

Second, I too think that legislatures are pretty unresponsive. But perhaps unlike many other progressives and liberals, I don't think courts are particularly responsive either, in the long run.

Third, my main point is not so much that legislators shouldn't punt--though I do think that. Rather, it is that legislators like to punt and then perversely attack courts for sorting out what the legislators have punted.

Finally, I'm with you (and Ethan) on Rappaport.

Posted by: Hillel Levin | Sep 8, 2005 12:48:48 PM

I'm not so sure that greater statutory clarity/specificity and less "legislative abdication" are always desirable. And the issue is (or should be) independent of one's individual politics or one's perceptions of the relative normative reliability of the legislature, the judiciary, and the electorate.

It all depends upon our assessment of the responsiveness of legislatures. I'm in the "not very" camp. When legislatures function like ratchets, statutory particularity can ultimately produce legislatively irremediable entrenchment of bad rules. For all its faults, statutory ambiguity, by contrast, can and does foster bidirectional judicial fine-tuning. Rhetoric regarding "judicial activism" notwithstanding, judges as a whole have a long and commendable history of interpreting unambiguous statutes unambiguously -- for good or for ill. Their track record on ambiguous statutes is, well, a bit different.

A lot of the "statutory specificity is absolutely essential" school of thought depends implicitly upon the notion that judicial default rules encouraging specificity would tend to prevent the passage of bad laws, at least over time. I'm not sure the historical record supports that assumption.

This is especially true of the very areas of law most susceptible to the public choice/rational actor critique, and even moreso when the law in question presents an overdeterrence problem. It's damnably difficult to get even an obviously "bad" law repealed; it is markedly harder to change any rule resulting in too little of a bad thing. (Yes, I know that there are implicit normative baselines all over these arguments).

I'm not yet sure how I come down on this issue at the end of the day -- a number of smart people have advanced interesting arguments on all sides. I am personally reluctant to adopt a view that judges are normatively "better" than legislatures at "getting things right" for any number of reasons. I also reflexively dislike the notion that legislators can punt on the hard questions. That said, the "statutory starting point/common law evolution" framework may well prevent entrenchment of undesirable legislation by offering an incremental mechanism for the development of consensus that the compressed and compromised legislative process may not. (I tend to find even the best arguments regarding judicial capture relatively unpersuasive -- if you buy them, your mileage may vary).

Things to think about, anyway.

As for the arguments in Rapoport's (sp?) post, that's a story for another time, but I don't think highly of them.

May not matter now, though, since news reports have Arnold vetoing the bill.


Posted by: Paul Stancil | Sep 8, 2005 12:39:02 PM

Re: the fonts. Log into Typepad. Instead of "Compose Post," hit "Edit HTML." When you do this, you'll see what a mess your post is. There will be lots of random tags (esp. the killer "span" tags). Have someone who knows a little HTML to fix it (it would literally take less than 60-seconds).

Posted by: Mike | Sep 7, 2005 5:46:56 PM

AS could argue that he very much wants the input of the courts on the interpretation and constitutionality of Prop 22, which is making its way through California courts. Only then can he decide whether it is appropriate to override the state's voters with the legislative action. I'm not especially sympathetic to this strategy--and agree with Hillel that it is just a political calculation. But it wouldn't be incoherent to offer this "wait-and-see" excuse.

Posted by: Ethan Leib | Sep 7, 2005 3:56:50 PM

Because I'm curious to see politicians and other actors within a constitutional regime furnish reasons for their actions and decisons. Call me naive. Call me crazy. But I'll be late for class, so I have to run...

Posted by: Dan Markel | Sep 7, 2005 3:39:27 PM


I'm not certain why we would/could/should expect Arnold or his people to be able to give a defensible and coherent account for the choice. Something like "the Governor respects the Constitution and the Courts, and in light of the various lawsuits currently addressing this issue, he defers to the courts" is the most we can expect. Yes, it is incoherent. Yes, it is indefensible. But why would you think that Arnold's decision on this is driven by anything other than political concerns? Why would you seek any other rationale for this "decision"?

Posted by: Hillel Levin | Sep 7, 2005 2:45:19 PM

Hillel, I appreciate the legal realist view you espouse--and yes, that had occurred to me too. What I was after was the kind of rationale that AS himself (or his public spokesperson) could reasonably promulgate himself (or on his behalf...).

Posted by: Dan Markel | Sep 7, 2005 2:36:39 PM

I apologize for the funky fonts up there. I've tried to correct it, and am unable to.

Posted by: Hillel Levin | Sep 7, 2005 2:02:23 PM

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