The conservative judges on the court will rule in favor of prop 8 and any person with or without standing will satisfy those conservatives, regardless of the conservative championed precedent of “standing”. If any of the four liberals or the one moderate/conservative (Anthony Kennedy) join, then it will be overturned. But the four solidly conservative justices will seek to please their patrons’ political base and find a way to hear the case and rule for them. This is a core issue for them and it will be pure politics.
I don’t think that’s true. I mean, judges worry about politics and have political biases and ideologies like everyone else, and of course, they tend to rule in ways that support their legal and political biases, but it’s really unusual for a judge to ignore the law. If a party really and clearly doesn’t have standing, a judge isn’t going to say they do just so they can rule on the underlying issue.
Look at the recent thing with the Orly Taitz appeal being turned down. I have no doubt that Justices Thomas and Alito really dislike President Obama and wish he wasn’t President, but that doesn’t meant they’re going to reverse the sanctions against Taitz, because the sanctions against Taitz are clearly warranted and her regular birther lawsuits were clearly frivolous.
Thing is the SCOTUS interprets/makes law (in a manner of speaking). Lower courts must apply the law as written. SCOTUS is a whole other ball game.
As such they can and do apply their prejudices to the cases before them (right and left do it). They interpret and bring their worldview with them when interpreting.
I think the semi-recent Heller decision is a clear case of the judges ruling to produce a result they want rather than applying the law as written.
Scalia, the embodiment of textualism, completely went off the rails (for him). He essentially gutted half of the text of the 2nd Amendment saying it meant nothing then read in a right to self defense that it nowhere to be found or even implied anywhere in the constitution.
Now, remember he is a textualist. You might argue the militia part is not what it appears to be but he shouldn’t because it is there in the text. Further, a textualist shouldn’t be finding rights that aren’t actually written in the constitution. I do not think Scalia is happy about privacy rights because they are not in the constitution. How can he find this other stuff? The hypocrisy burns…
This is not to hijack to a discussion on Scalia or a debate on the 2nd Amendment but to show the justices can and do twist the law to suit their own side. Some more than others but both right and left are guilty of it. In Scalia’s case we have a brilliant man (I disagree with him on most things but I think the guy has a first rate intellect). Unfortunately I think that allows him to twist reasoning any way he pleases to suit his preconceived notions. I’d wager the man could argue black is white and manage to make it sound plausible.
Point is I think the justices are smart people and can almost always bend things to suit their personal views.
No matter how partisan the justices are I think they all very much value their respectability their position grants them. No matter how much they may hate Obama there is no way any of them can hitch their wagon to the flat-out crazy Orly Taitz represents (thankfully…should it ever be otherwise note that moment as the beginning of the end).
I think he is trying to make this black-and-white when the reality is there is a continuum with many shades of gray.
Making this a, “Well, you can’t EVER distinguish among groups if we have it your way!” totally denies the reality we live in.
The courts came up with a way to determine what is worthy of greater scrutiny and what isn’t. I know some around here don’t like it but really how else could these things be determined? Should a two-year-old be allowed to vote? To marry? To drive a car?
Of course not. There is a rational reason for denying that to the child. Thing is, barring an untimely death, the child will grow up and gain the privileges adulthood brings.
The issue is when you marginalize a whole group that has no way out of it. “You (yes “you” you) can’t get married…EVER!” Are you ok with that? If the government were to hold such a thing I would expect them to be able to express a compelling reason for doing so. They have a compelling reason for preventing children from driving. They have NO compelling reason (no reason whatsoever actually) to say you cannot get married.
Bricker and some others seem to think it is fine if there is no reason. The law as it stands may allow them to get away with it but c’mon! Really? People here are ok with discrimination just cuz the government says so?
The constitution explicitly states that people have all rights not granted to the state or feds. Yet it has been ignored by “textualists” like Scalia and everybody else interpreting the constitution in the judicial system. While personal interpretations of what is right and wrong are affected by the principles stated in our founding documents, it is the height of naivete to pretend that judges actually follow their jurisprudential philosophy. I sincerely hope that when Scalia, Alito, Thomas and Roberts get the chance they will affirm the standing doctrine of the past half century, but my cynicism says that they will not only ignore it, but dance around it in such a way as to keep it from being applied to environmental interest group lawsuits. There simply is no standing. A principled conservative constitutional scholar would recognize this. Judge Walker is such a principled conservative constitutional scholar, and there are others. But most judges, and especially the four hacks on the USSC are nothing but party water carriers.
I don’t know how many times I have to repeat this. Maybe I need to get YOU to repeat it before it will sink in.
So let’s try that: repeat after me:
“Fine” is not the same as “constitutional.”
“Good” is not the same thing as “constitutional.”
“Right” is not the same thing as “constitutional.”
OK? Got it?
Now, why would you say, “Bricker and some others seem to think it is fine if there is no reason?” What have I said to support that view?
Nothing.
I have opined that it is CONSTITUTIONAL. The Constitution is not the Bible. We do not look to it to cure all ills. It is perfectly possible for a governmental policy to be unwise, foolish, wrong, even evil, and still be perfectly constitutional.
Please explicitly acknowledge that you understand this.
Are you making a distinction b/w the State as the state and as represented by its officers, a la Ex Parte Young? B/c I don’t think that’s a real distinction – the state can be bound just as securely in a Young case as when they’re a named defendant.
But in general, speaking in my role as Official Deputy of the nation’s liberals, we’d be happy to relax Article III standing requirements if you guys will go along in all the other cases in which it comes up.
–Cliffy
I don’t know how many times I have to repeat this. Maybe I need to get YOU to repeat it before it will sink in.
So let’s try that: repeat after me:
Whack-a-Mole has stated explicitly in this thread, several times, that he understands the reality that the court can do whatever the fuck it wants with no reason whatsoever. Whack-a-Mole understands that “Rational Basis” is anything but “rational”.
While Whack-a-Mole understands the reality of the situation Whack-a-Mole refuses to “be ok” with it.
Whack-a-Mole decries Bricker’s defense of the status quo. That a judgment by a court can be so detached from reason as to be just shy of “pulled it out of a hat” is appalling.
Whack-a-Mole is truly stunned at Bricker’s contentment with this. An attorney who does not believe in a rational process (which defintionally to me presumes a rational argument) to arrive at a just outcome.
Whack-a-Mole’s only doubt is whether Bricker is being pedantic just to annoy or if he really believes this is ok. That a constitutional question of discrimination can be nothing more than whatever the SCOTUS feels like that day.
OK? Got it?
Post #31:
“Don’t confuse the rational basis test with “simple, rational thinking.””
Post #64:
BrightNShiny: I think it’s fair to ask, when a rational basis argument is being proffered, if the actions of the state are consistent with any of the reasons being offered.
Bricker: You may think it’s fair to ask that… but that’s NOT, in fact, the way the actual rational basis test is conducted.
So educate me. Tell me what level of reason/logic, currently as the law is today, a state needs to show to discriminate against homosexuals. Maybe I have misunderstood.
I understand the realities and, as mentioned, have already noted that in this thread.
Your turn:
Please explicitly acknowledge that you are ok with that state of affairs, that you are ok with judicial decisions that affect the lives of millions, based on what you just said. That or tell us, explicilty, that you are not ok with this.
Bonus Credit: Also let me know that you realize this is a forum for debate and not a list of the “way things work, don’t fuss” forum. Pointing out the realities is useful but not the end of the conversation here.
Whack-a-Mole has stated explicitly in this thread, several times, that he understands the reality that the court can do whatever the fuck it wants with no reason whatsoever. Whack-a-Mole understands that “Rational Basis” is anything but “rational”.
Yup. Got it; already had it.
While Whack-a-Mole understands the reality of the situation Whack-a-Mole refuses to “be ok” with it.
Yup. Got it; already had it.
Whoa. Full stop.
Here’s where our disconnect is, I think.
You seem to believe – and I welcome correction or expansion of the point here – that the court’s job is, or that it should be, to arrive at a just outcome. That the court should assess all the factors, weigh them, and then produce a just outcome.
But if the courts had the power to do that, no matter what the law says, then the courts are the most powerful of the three branches of government. A judge who has the power to disregard the law and craft his own “just” solution is a king.
I’m not “fine” with unjust results. But I accept unjust results as the price of living in a society where my own ideas of justice do not always win the day.
Imagine an ardently pro-life judge, whose firm conviction is that abortion is murder. Might he not, if given the chance, find that the Fourteenth Amendment’s guarantee not to “…deprive any person of life, liberty, or property, without due process of law…” applies to unborn persons as well?
What’s he doing that is different than what you’re urging? Naturally, you don’t agree with his result, but isn’t he doing the same thing you want to see happen – imposing a just result as he sees it?
I am ardently pro-life, and I agree that abortion is wrong. Yet I would be appalled at the judge who reached such a conclusion… not because I disagree with the result of ending abortion, but because I believe a judge or group of judges should not have the power to enact changes like that, no matter hos just they think those changes are.
I don’t believe the result is OK. But I believe the sometimes-poor results that happen are an inevitable artifact of the system of self-governance we’ve agreed to.
Not “OK with.” “Willing to accept” as the price to live in a society where each of us has a vote. My way is the best, but you think your way is the best, and elucidator thinks his way is the best. So we have to agree on some system of selecting rules and rulers. If we cede that power to unelected judges, we undermine that freedom. And I think having that freedom is more important than any single issue, even abortion, even same-sex marriage.
Sure. My objection is you characterizing me as fine with the results. That’s not my position. That’s like saying I’m fine with the hair loss and vomiting, fine with the chemotherapy. I’m not: I just think letting the cancer take its course would be far worse.
It occurs to me that when I offer up the abortion hypothetical, you (or another reader) may dismiss it as too fanciful to consider.
Here’s a real life examples of judges deciding the create their view of “justice,” without much regard for what the law says.
Juan was born in Mexico in the early 1950s. His parents were both Mexican citizens and were not married. A year after Juan was born, Juan’s mother began a relationship with a man who was a United States citizen.
That couple married in 1960 and in 1965 moved to California. The father never adopted Juan, although he did treat Juan as a son. Juan’s mother became a naturalized citizen in 1995, when Juan was 43 years old. Juan never became naturalized.
Is Juan a citizen?
Bricker has said it much better than I can, so I will summarize where I agree.
- The constitution does not cure all evil.
- Judges need to respect the constitution and not go outside of its bounds to cure all evil.
- If you think that the ends justify the means, then we no longer have a representative democracy. We have a rule by kings which go by the name of judges.
Also, many have argued that there is zero rational basis for keeping SSM illegal. Are some of you so blind that you see any point of view that is contrary to your own as irrational?
Here is the argument against legal SSM:
-
It has been historically a nullity and it would be introducing into society an element that has not been tried or shown to work. It would be a step that is against the wishes of a majority of Californians, one of the most liberal states in the country, and against the wishes of voters in 30+ states that have passed laws or state constitutional amendments.
-
A state may hold that the traditional family unit, a monogamous relationship between a man and a woman is the proper vehicle for procreation and raising children. These relationships have been historically tested as being viable and healthy. To expand on this type of relationship may have the effect of harming the traditional institution of marriage.
-
By recognizing more marriages, small businesses that provide health benefits to families will see their costs increase, possibly causing more companies to stop providing these benefits or increase unemployment.
Now, I’m not here to argue these points. They may be wrong, and I’m sure that many posters can argue against these and disagree vehemently. That doesn’t mean that they are irrational or have no basis in law.
Hell, I could list a hundred laws in my state that I think are ridiculous, wrong-headed, outdated, and just plain stupid. The recourse for that is to elect people who agree with your point of view. Or is it more important to hijack the democratic process to have your views become law by force of judicial decree?
Since the Supreme Court is far more wise and protective of our rights, why not abolish legislatures and just run everything past our nine kings?
My argument against anti-SSM partisans who claim that it is about having children is that by that logic, sterile people should be banned from getting married. Sadly, I have never heard that counterarguement in court.
Have you ever seen that argument in one of these threads?
Have you ever seen the response to that argument from anyone who can explain the process of rational basis analysis?
Because, you know, it’s been mentioned once or twice.
Posit a rational argument against legalization of same-sex marriage, and we’ll talk. None of those you listed are rational.
Unless your definition of “rational” is “not totally frivolous”.
That’s the definition of “rational” in the rational basis test.
I think you may be on to something here.
Hysterical. Most of the arguments you made in this thread have as their basis prior Supreme Court decisions. You’re happy to use certain “kings” when they agree with you.
Actually, as I look at the timelines here, I’m not so sure about my earlier statement.
If Meg Whitman wins, can she have the state join the appeal the moment she becomes Governor?
That would obviously moot the standing issue.
“Rational” in this case appears to mean “tied in some substantive way to a legitimate government activity.”
E.g., it is not unjust discrimination that some states permit 16-year-olds to drive and others do not, or place onerous restrictions on when and where they can drive, because determining when a person has adequate mature judgment to be permitted to operate a motor vehicle is a legitimate state activity, under the police power, and different legislatures may come to different determinations regarding the mature judgment of 16-year-olds.
A job that requires heavy lifting or exposure to low-level radiation may legitimately extend late-pregnancy leave to female but not male employees for the rational reason that, while males may legitimately “be expecting a baby” in the sense of the imminence of fatherhood, it is the females who are at risk because it is they who are pregnant.
A device may be provided that is supposed to be operated with the right hand, despite the fact that 10% of the populace is left-handed.
A zoning law may legitimately require a greater setback for an elementary school than for an office building of the same population, or more parking spaces for the office building than for the elementary school.
The Supreme Court (or any court, for that matter) can strike down restrictions on our rights. It cannot impose new ones.
I understood his post to be utilizing the dictionary definition, not the legal one - but in re-reading it I’m not sure which one he meant (and he did actually use the phrase “rational basis”).