Here’s the difference: again you’re touting a dramatic change, and the aggrieved people in your hypothetical are hurt by the change. They would ask the court not to make an unheard of change for their benefit, but to restore the previous status quo.
So to answer your particular example: the left-handers should go to court and ask the court to review that law as violative of the Equal Protection Clause, and evaluate the law under a rational basis standard.
But when they do that, they are not asking the court to create a new state of affair. They are asking the court to return the previous, long-standing state of affairs.
In the Iowa case, the court was asked to do something new. It’s not ridiculous to say that such changes should come from the legislature, not the courts.
I’m pointing out, though, that a person could well have voted against the retention of those judges based on his view of their merits. In other words, a reasonable person could have concluded that Iowa’s equal protection clause should be read as coextensive with the federal constitution’s, and since Iowa is in the Eighth Circuit, that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) controls (“We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”)
Or a less informed, but still reasonable person, could say, “This is the kind of question that legislatures and not judges should decide.”
But you and I both know that the role of the judiciary is to interpret law and that’s exactly what happened in this case. The Supreme Court served the exact purpose for which it was designed.
For as much as people wish in Iowa wish to rail against SSM, they are 100% wrong if they believe
this ruling was “judicial activism” where the Supreme Court justices created law. We both know they didn’t.
The Supreme Court of Iowa had no right to either hear or rule on this case. We both know they did.
And your argument about how this case is different because it gives people rights they didn’t previously had and that somehow makes it special doesn’t pass the laugh test. Do you think Blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional? No. It was exactly like this case above. Lord help us if the Supreme Court of the US followed the Missouri Plan or Earl Warren would have served just 16 months on the bench rather than 16 years. (Hey, on the plus side, Miranda would have swung 5-4 the other way and we’d never have to worry about the cascade of rights that criminal suspects have gotten that stem from that opinion).
So it seems we have these options, unless there’s another I’m missing:
You argue that no reasonable person could have said, “Iowa’s equal protection clause should be read as coextensive with the federal constitution’s, and Citizens for Equal Protection v. Bruning controls, so I don’t want to retain those judges.”
You argue that no reasonable person could have said, “I don’t know about all that law mumbo-jumbo, but I do know that for decisions like this, I want them to come from legislature, not judges, so I don’t want to retain those judges.”
You argue that a reasonable person COULD have said #1, or #2, but that this particular bunch of Iowa voters (or all voters) did not; en masse they were motivated solely by bigotry.
Is there another option? Or does one of those capture the essence of your argument?
Wow. So the solution, it seems, is to register even more voters, concentrating especially on poor, inner-city voters, because those are the sorts of voters that usually have the best understanding of the issues. Or… no?
Yes, the voters were motovated solely by bigotry. Let’s not sugarcoat it. It is what it is. It’s a great example of why the judiciary should not be subject to elections. Mobs don’t make good judges.
Certainly they created law. I don’t know that I’d call it activism, but they certainly created new substantive law.
Correct.
And you’d be singing this same tune, I assume, if the Supreme Court finds a Fourteenth Amendment right to life in an unborn child, and bans states from conducting abortions? After all, they’d have a right to hear and rule on this case, and so you think blacks had something better to fall back on when the Court struck down the Jim Crow laws as unconstitutional?
No?
The Iowa courts had every right to determine what the Iowa constitution meant. The judges involved chose to expand the state equal protection clause in a new way. That’s what courts do. It’s not at all unreasonable.
But the Iowa voters also had every right to refuse to retain them. The voters chose to reject those judges, and that decision, too, is not per se unreasonable.
Now, I’d grant that for every voter who said, in his mind, “I’m voting ‘no’ because they let gays marry,” THAT is an unreasonable voter.
But I also contend that every voter who said, “I’m voting ‘no’ because decisions of this magnitude should come from the legislature,” is NOT unreasonable.
And I certainly contend that every voter that said, “Iowa’s equal protection clause should be read as coextensive with the federal constitution’s, and Citizens for Equal Protection v. Bruning controls,” was not unreasonable.
If we both agree that the Supreme Court had every right to hear and rule on this case, but your contention is that these types of decisions should be left to the Legislature…I’m not sure how you can rectify those two statements. What would you have the Court do? Issue an opinion but put a footnote on the decision that says “For informational purposes only. Not to be used in the implementation of legal analysis.”?
I do believe it’s possible that some members of the public voted “no” on the judicial retention based upon the contention that decisions of this nature are best left to the Legislature and not because they had ill-will in their hearts for homosexuals. But I don’t think it matters. If the court had the right to hear and rule on the case then the court had the right to hear and rule on the case. The court was acting properly and the Justices shouldn’t be punished for performing their defined role.
Besides which, that entire last paragraph is pretty much irrelevant. Try all you want, I have Occam’s Razor on my side and it says the most likely conclusion is that the majority of voters who voted no did so because they’re bigots and hate homosexuals, not because of any quasi-legal analysis you might cook up.
Not so. “Has the right to hear and rule on it,” does not translate to, “So therefore all voters must accept their decision and give it no weight in their decision to retain the judges.”
An unsophisticated voter can say to himself, “I don’t know about the law, but I know that this is a big change in this state, and big changes should come from the legislature.” This is a position that intuitively makes sense. If judges are supposed to interpret the law as written, and the written law hasn’t changed, how could it possibly be true that suddenly, 164 years after Iowa’s constitution was written, it becomes true that it requires same-sex marriage? That’s not in-depth legal analysis, but neither is it bigotry.
Yep. Every bit as much as the US Constitution mandates the free production and distribution of scat porn. An unintended consequence of the text, but an unavoidable one.
So does the Fourth Amendment (text written in 1789) prevent the federal or state governments from placing a battery-powered GPS beacon on your car’s inside bumper and tracking your movements for a month?
I’m not so much interested in what you think, but what it says. After all, you will die someday, and the rest of the country must continue to figure out what the Constitution says, so we can hardly rely on “This is what Diogenes thinks” as the rule, can we?
Now, as it happens the DC Circuit disagrees with you. They say that the Fourth Amendment DOES prevent the government from using GPS in that way. The Supreme Court has not spoken on the direct issue of GPS use.
So… does the Fourth Amendment say something different in DC than it does in the rest of the country? The DC Circuit – did they create law or enforce it?
How about the Ninth Circuit? They decided the issue precisely the other way. Are they creating law or enforcing it?
But as you note, the Supreme Court has yet to rule of the issue. If it does, regardless of the decision, I wouldn’t rend my garments crying “Why? How? The Constitution is OLD! How could we have a Constitutional mandate of GPS from before it was invented and surely these activist judges have no right to mandate what should be the role of Congress! Clearly the whole system is out of order!”