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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, October 26, 2006

Rank ignorance posing as expertise

It should surprise nobody that armies of "conservatives" have become overnight experts in New Jersey Constitutional law and have pronounced the 66-page decision (.pdf) from the New Jersey Supreme Court to be a tyrannical embodiment of judicial activism. But in issuing these condemnations, none of them mentions a single provision of the New Jersey State Constitution or any precedent applying it that supports their righteous conviction that the decision was legally erroneous; they just know intuitively, deep in their soul, that it is.

Others are arguing that it would simply be "better" if courts stayed away from gay marriage rulings and left it to legislatures to decide. Typical of this latter form of condemnation is James Taranto's reaction: "We'd also be happier if this were thrashed over democratically rather than forced upon society by the courts." Tom Maguire makes essentially the same observation: "My personal opinion is that gay marriage or civil unions is fine if enacted by the state legislature but wrong if crammed down by judicial fiat."

This just isn't how the law works, and it is always so ironic -- and more than a little contempt-inspiring -- when people who proclaim to oppose "judicial activism" condemn a judicial decision based not on what the relevant constitutional law requires, but instead based on their personal opinion of the policy outcomes (or based on some informal "belief" about what courts should and shouldn't be "involved in," independent of what the Constitution requires). Such individuals are engaged in the very crux of the crime of judicial activism which they claim to despise (that is, deciding legal questions based not on law and precedent but on their own personal preferences).

Either the New Jersey State Constitution -- as defined by the governing precedents applying it -- compels the legal conclusion reached by the New Jersey Supreme Court or it does not. That is the only relevant issue. It's not a matter of picking and choosing which issues we think it would be nice for a court to resolve and which ones we'd sort of prefer -- given our subjective druthers -- the court leave to the will of the majority.

At the very center of our constitutional republic is the principle that the overarching obligation of courts is to nullify any and all laws that conflict with the guarantees of the Constitution. Or, as Hamilton put it in Federalist No. 78: "wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." Courts in these cases have only one question to answer -- do the relevant constitutional provisions (in this case, Article I, Paragraph 1 of the New Jersey State Constitution) bar the law in question? -- and if so, courts are required to nullify that law. There is no discretion or political judgment involved, and they are not permitted to simply decide that they won't involve themselves in such matters.

Thus, arguments which claim that "courts should stay out of debates over marriage laws and leave it to the legislature to decide" or "it would be better if these decisions were democratically resolved by majority vote" are -- even if true -- completely misguided and incoherent. Courts have no right to "stay out of" debates over laws if those laws violate constitutional guarantees. It's just that simple.

For that reason, in order to know whether yesterday's ruling is an example of great scholarly judicial care or unhinged judicial activism, at the very least one would need to be familiar with: (a) the interests claimed by New Jersey to justify the state's exclusionary marriage laws; (b) the arguments advanced by plaintiffs to support the claim that the law is violative of the state Constitution; (c) the provisions of the New Jersey State Constitution on which the plaintiffs rely; and (d) the history of how those provisions have been interpreted and applied by New Jersey State courts and the relevant precedents on which the court relied.

It is impossible -- at least without falling into total recklessness -- to simply look at the result of a court case, decide whether or not you like it, and then pronounce it as either judicially sound or judicially irresponsible. Yet that is what virtually all of these commenters are doing who are condemning the New Jersey Supreme Court for "judicial activism." They do not even purport to have even a casual familiarity with any of the issues one would need to know about in order to form a responsible opinion. They really have no idea what they are talking about.

The decision is 66 pages long. I've read it twice. But if you ask me what my view is as to the legal correctness of the decision (either the part which compels equal treatment of same-sex relationships or the part which refused to find a same-sex marriage right under New Jersey constitutional law), I would not be able to opine on that question, because I don't know enough about the scope and reach of Article I, Paragraph 1. Opining on the correctness of the New Jersey decision without that knowledge is nothing other than idiotic.

I have well-developed opinions about whether gay marriage is desirable and just from a policy perspective. And I have a fairly well-developed view of whether the U.S. Constitution prohibits the exclusion of gay couples from the institution of marriage. But the New Jersey State Constitution is its own document with its own guaranteed protections, and it grants broader and more extensive rights to New Jersey citizens than the U.S. Constitution grants to American citizens generally. Condemning this decision without knowing about the scope and reach of those New Jersey constitutional provisions is just indefensible.

This doesn't mean that only lawyers or constitutional law experts can form opinions about the court's actions. Anyone can read the judicial opinion, then go read the precedents on this provision, and inform themselves about what the New Jersey State Constitution does or does not guarantee. But -- as is true for any other topic -- a basic understanding of the relevant issues, so plainly lacking in all of these overnight experts, is required to be capable of anything more than baseless demagoguery.

This happens every time there is a controversial court decision like this, and the irony is overwhelming. We're subjected to all of these people parading around in protest of "judicial activism" who are doing nothing other than forming their opinions based on whether they like the outcome or whether they would "prefer" -- based on some tingly internal feeling -- that courts stay out of these issues.

Maybe it would be better in some political, societal or cultural sense if gay marriage and related issues were decided by legislatures and referenda rather than courts. A reasonable argument can certainly be made that it would be "better" for advocates of gay marriage if they win by convincing their fellow citizens rather than via judicial rulings which hold that denial of marriage rights is unconstitutional.

But that is just not how a constitutional republic works. Constitutional guarantees exist to limit majority will, and courts must nullify any laws which conflict with those guarantees -- even if it would be "better" in some vague political sense to leave it to the majority to decide.

To know whether the court here acted properly, one must know whether the New Jersey State Constitution grants the rights which the court here concluded (unanimously) that it grants. Any condemnation of the opinion that is not based on that factor -- such as all of the condemnations linked above -- are themselves the very embodiment of an unhinged judicial activism that has nothing to do with the rule of law (other than to subvert it).

UPDATE: Scott Lemieux notes that this strain of intellectual dishonesty -- condemning judicial rulings without bothering to ground such condemnation in any relevant legal analysis -- is prevelant even (perhaps especially) among many law professors, including some who love to sermonize (when it suits their agenda) about the Critical Importance of relying on solid legal reasoning when reaching legal conclusions.

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