Under Posner’s approach, judicial enforcement of constitutional rights would only occur when it is least needed – when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise. If it is indeed true that “[t]he arguments against same-sex marriage were never strong,” then gays and lesbians should not have had to wait until those rationales became unpopular, for judges to rule against them....
There is no question that judicial decisions are often influenced by changes in public opinion.... But recognizing that empirical reality is very different from offering a normative justification for judicial nonenforcement of unpopular rights....
December 1, 2015
Ilya Somin on "Judge Posner’s troubling explanation for his shift on same-sex marriage."
"Posner’s argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed...."
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41 comments:
Too bad for pizza parlors, photographers and bakeries too.
So we really don't need judges, just pollsters?
Aren't judges supposed to be immune to public opinion, and only concerned with the law?
rhhardin: "Too bad for pizza parlors, photographers and bakeries too."
The muslim owned and operated ones will be just fine. As they are today.
Gahrie: "So we really don't need judges, just pollsters?"
An improved Politburo would be helpful as well.
Don't worry. Posner will never get appointed when President Trump picks our new Justices to replace the ones that he fires.
Seriously, no pronosticator ever knows why Supreme Court Justices hit and miss, or don't swing at all. The hint that they are following any method would be my last guess.
Posner's candor is commendable. Somin is hopelessly naive.
So, Posner is shifting positions on his support for selective exclusion?
The popular support for constructing congruences emanated from a penumbra with a transgender/homosexual judge who overrode a Democrat consensus, followed by an activist wave flooding communities and sabotaging the conversation. Perhaps the JournoLists, academes, politicos, and activists overstated the popular support for a pro-choice doctrine.
Posner has long since turned Prog. Like Woodrow Wilson, he thinks the Constitution doesn't work for a modern society, and the 14th Amendment in particular is old and vague, so judges should just go ahead and do what "works" best now. No matter that he got his authority from -- oh well, no fair asking for consistency from Progs. Of course, the invocation of public opinion is entirely disingenuous, because it only works one way: if it can be used to support a change Progs like, they'll use it; if it opposes a change they like or wants a reversal, they'll ignore it. Because stare decisis. At least Posner's aspy-style honesty has the benefit of making clear, unmistakably and unambiguously, that Progs despise the rule of law and consider the Constitution an inconvenient fig leaf.
That Posner himself is unaware of the ramifications of and inconsistencies within his opinion is quite troubling. Or perhaps my assumption is incorrect and he is aware and is fine with that.
Either way, this is how democracy dies; when the cold, hard, cruelly neutral, rule of law is adjudicated by cowards and self-interests.
Conservatives need to start Gramsciing our asses back into the education barrios ASAP.
Posner's position at least has the virtue of candor. He (and everyone else) is not much interested in the great bulk of the courts' caseload -- mundane civil or criminal cases construing or applying statutes to the particular facts of a controversy. Accepting that focus on the small number of extraordinary cases, the business of first announcing and then enforcing constitutional rights that no court had previously found in the constitution is surely an act more political than judicial, even if the decision is cloaked in the rhetoric of constitutional interpretation. Expansive constitutional theories about 'rights' of all sorts, textually based or not, abound -- every law school has professors with their particular favorites (anyone want to resurrect, e.g., the 'no state shall impair the obligation of contracts' clause? -- there are plenty of academic takers). But you can pretty much run with any of the constitution's open-ended provisions -- it's a game anyone can play, and once you start, it's a small step to seeing the constitution as a wonderful device to take you wherever you want to go. For those who think this only works in a lefty-minded way, just pay attention to some of Justice Thomas' dissents, particularly those that none of the other justices joins. He's all for returning to constitutional first principles, and does so with the zeal of a Puritan reformer seeking to rid us of misguided judicial accretions that obstruct the achievement the Founders had in mind. And he's often quite persuasive, if you don't mind dumping lots of prior contrary precedent.
Posner recognizes how bizarre it is for a nation to accept judicial rule on these political questions. He's not alone -- the acceptance that courts are essentially political actors in these cases has become very explicit, and is on full view every time there is a high-profile appointment to a federal appeals court. All of the key players (presidents and presidential candidates, senators and sundry power brokers in and out of government from both parties) view the judicial process on these kinds of questions as entirely political, to the point where they want wink-and-nod assurances about how a potential nominee will vote if appointed and confirmed. On the Rep side in particular, there is a lot of concern about not appointing another Souter or Kennedy. For the Dems, it would be an exercise in avoiding another Byron White, even though that's much less of a concern (plenty of committed lefty candidates around, and you never have much doubt how they will vote in these kinds of cases). All of the players want an assured vote, and couldn't care less about how the prospective judge would explain it in a decision. You see the same thing in the press coverage, especially but not exclusively in the NYTimes and similar publications, whenever an abortion or an Obamacare case is on the docket.
Over time, one comes to understand FDR's impatience with such a nonsensical way of running a modern democratic state.
As it says in Article III, "The deciding-which-arguments-are-strong power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish."
A while ago I asked why I should be impressed with judges. Still don't have an answer.
Aren't judges supposed to be immune to public opinion, and only concerned with the law?
Makes "lifetime appointment" seem really pointless, no?
Scratch a liberal, you'll find a fascist. Every time.
Have I said it on this site yet? From the first Posner opinion I read, I knew he was over-rated as a thinker. Superficial and pompous.
Professor Althouse thank you for posting this; I might have missed it but for your blogging.
While you and I no doubt disagree profoundly over Obergefell, I am routinely delighted to discover stories of all kinds at your blog.
Judge Posner wrote what my favorite Seventh Circuit opinion; Austin v AANS. And he wrote the worst one, in the Bogan and Wolf cases.
My onetime-favorite federal judge is now an object of distressed curiosity. Compare Posner's grandiose, arrogant opinion to the brilliant, modest, careful, clear opinion of Judge Jeffrey Sutton in what became Obergefell.
I've never understood the admiration of Posner. I've always found him to be to much of an intellectual-dilettante. In other words, a poser.
The only we keep up the pretense of "justice is blind" is to keep law professors working. And judges and lawyers, by extension.
Make no mistake, its all a charade now. The left caught on to this before Roe V Wade. The system has held together this long because the right is stubborn.
It's almost over with.
As Judge Posner so eloquently put it in his Yale Law Journal piece arguing that so-called Constitutional rights are merely a function of popular whim:
"The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense."
It don't take no weatherman to know which way the wind blows: that's what we have unelected federal judges for.
Judges have only as much power as we choose to allow them to have.
One day we'll stop listening to them, and that will be that.
Re Richard Dolan:
Other Countries have dealt with the oddity of the judiciary by segregating off the responsibility for adjudicating Constitutional questions, and vesting it in a separate court. Korea does this. I think France may do as well. Obviously, not a panacea since vesting such power in any organ introduces its own complexities. But perhaps a little more natural than our system, which blends ordinary legal disputes together with basic constitutional questions.
On the broader issue, I am sympathetic to Posner -- there's a widespread assumption that laws which are procedurally valid (passed by a legislature and applied by a judge who has been appointed in a procedurally correct fashion) are therefore legitimately law and have some moral force as law. But this assumption is mistaken, and the way our laws have been structured, both in the federal nature of our system and in the protections for minority rights, reflect a recognition that this assumption is mistaken. Laws that require people to act in a fashion inconsistent with their customs and mores aren't "law" in a moral sense -- they become mere commands supported by the threat of violence: power that flows from the barrel of a gun.
The obligation of the legislator is to shape laws such that they promote public order in a fashion consistent with the customs of the people he is set to govern over. And this is the obligation of the legislator in a democratic polity as much as it is the obligation of the colonial administrator -- a democratically elected legislator cannot simply assume that because he was elected, the laws he passes have any moral authority. And fulfilling that obligation means that even in a democratic polity, the laws may not necessarily reflect majority opinion. One can easily imagine a situation where 90% of the population believes that on balance (say, 51% intensity), such and such a law ought to be passed, and 10% believe with a burning passion (say, 110% intensity) that to require compliance with such and such a law would be a terrible oppression, offensive against the laws of gods and nature. It is not necessarily the case that the law mildly supported by the 90% ought to be inflicted on the 10%. Against that 10%, such a law would have no moral force, and would be an expression of brute power, nothing more.
To the extent that minority protections are written into the Constitution, I don't think it's improper for judges to take considerations like the above into account, although they are not congruent to the considerations formalized in American jurisprudence, being both broader in scope (in that they are not limited to the categories recognized in our law), and narrower in application (I care about legal sticks a lot more than I care about legal carrots). But it is primarily a matter for the legislator, not the judge, and all the more so when dealing with a change in mores.
Riffing off what eric commented, perhaps Judge Posner thinks it's time to replace the statues of blindfolded justice with statues of pollsters?
Posner appears to be an aging judge protecting his legacy by pandering to the transitory whims of his colleagues and their professorial consorts.
His "immutable characteristics" and "welfare of all America's children" comments in his opinion striking down Wisconsin's and Indiana's bans were both indefensible and absurd.
Whose public opinion? And how is this measured or determined? A Gallup poll? Of all Americans? Those who can name a Supreme Court Justice?
And if for some reason the opinion changes (again, however we determine that) to oppose SSM should it then be overturned? Does this go both ways?
If public opinion - there's that slippery concept again - is in favor of SSM then why do we need the Court to strike down anti-SSM laws? If the people are in favor of it then let the democratic process work its way and we'll change the laws through that process. Why the need to short circuit the process?
It sure looks like Posner trapped himself with his earlier ruling against SSM and he can't figure a way out. At least not using the law.
Laws adapt and change according to societal norms, which is as it should be, or else we would still be a country that owns slaves and doesn't allow women to vote. It's called progress.
Just from reading Althouse, I get the impression that a lot of people used to think Posner was a brilliant "thinking-outside-the-box" judge and now everyone more or less thinks he's a flake.
If the Constitution is only a guideline to be ignored when inconvenient, the what is the legitimacy of the federal government at all? If they don't have to obey the Constitution, why do we have to obey them?
Barbarous acts by Palestinians have been excused for decades. I can't see why this would make any real difference, especially as it can be explained away with "well, these were just a few cruel men you can't judge all Palestinians by their acts."
Yet this ignores that atrocities by Palestinians always seem to get huge public support among Palestinians, and that Gaza chose to be ruled by Hamas (as if they didn't know who and what Hamas is).
The world somehow could not only defeat Nazi Germany but demand and get fundamental change in apartheid South Africa, yet it can't seem to summon the will to declare that something is very, very radically wrong with Palestinian society.
Well, here's the thing about laws and Constitutions which is also true of judges--they have no more authority over us than we allow them to have.
A piece of paper written by dead men cannot protect you from the people who are in power now. They cannot protect you from the voters who put those people in power either.
Which is good, because if the dead really could bind the living they would have bound us long ago to something quite different which we wouldn't like much.
The Constitution has the force that we the living give it. There is nothing that anyone can do about that.
So if you want to be governed by the principles of the Founders, you have to live in a country where most people agree that that is good and right. If a critical mass of the population decides that the Constitution doesn't matter, then it really doesn't.
Pointing to the parchment and yelling at the judge is the least important part of the battle. You have to have judges willing to go along, and a populace willing to go along, and in the end it will come down to hearts and minds of those living today.
So poster is full of shit. NO WONDER he ruled the way he did.
Poster wrote about 40 books on various questions of jurisprudence. I suppose we can put all of the books on the a
Bargain bin now, because he's essentially saying there is no constitutional basis on which judges should rule.
He doesn't believe in a living. Breathing constitution, he believes in a dead constitution, and what should replace it is an opinion poll.
If that's the case I'd listen to frank Lutz over any judge. Especially posner.
He hooks people up to these gizmos and then have political speeches played and the gizmos measure the reaction to the speeches. That is as sound as Posners approach. At least he can measure the popularity of things in real time.
Gay marriage should be legal because - check out those readings!
Georgie wrote:
Laws adapt and change according to societal norms, which is as it should be, or else we would still be a country that owns slaves and doesn't allow women to vote. It's called progress.
was desegregation popular to people in the south? Funny, but it's abolishment was based on constitutional grounds. If it was based on popular grounds, then why was was the south desegregated? Would it require a 51% majority, a plurality of voices? What polls are you using to come to conclusions that things are popular.
Next time a liberal supermen court justice is facing confirmation, re pubs should really press him on his view of the constitution. Is it dead, the way Posner suggests? And if so, why should we have supreme court justices again?
w
**ahem** Violence in the Crusades
Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.
Well, that settles that, I suppose.
The sound you heard in the distance was Justice Scalia's veins popping.
Gabriel said...So if you want to be governed by the principles of the Founders, you have to live in a country where most people agree that that is good and right. If a critical mass of the population decides that the Constitution doesn't matter, then it really doesn't.
Pointing to the parchment and yelling at the judge is the least important part of the battle. You have to have judges willing to go along, and a populace willing to go along, and in the end it will come down to hearts and minds of those living today.
Yes, just so. Teaching the young to respect and revere the ideals and ideas on which our country is based is the most important thing that can be done for the health & prosperity of America...but when's the last time that was treated like a priority by any person or organization in power? The Boy Scouts, maybe, who else?
This is a big part of what I mean when I argue against mass immigration on the grounds that we're not culturally confident enough to assimilate large groups anymore--the very idea of "American values" and "American exceptionalism" is ridiculous to our elites (in academia, Media/pop culture, etc) and as such it's no surprise that those things aren't taught. The Left won the culture war(s). Look around you--look back since the 1960's--look at current polls of young people today. The headlines talk about our increased tolerance, greater diversity, those sorts of things, and if that's all the Left "winning" meant, then (speaking as more of a libertarian than a conservative) great no problem at all! It's not, though.
The Left preaches that the Founders were bad people (they owned slaves!), that their ideas are flawed and not sincere, that our nation is founded on white supremacy, taht we're no better than any other nation, that the Constituion itself is racist/sexist/homophobic...and on and on. Civic ideals are a joke, a punchline. Hell, the same is true to a lesser extent to Western values! Bunch of self-serving jibber jabber from dead white males, nothing more.
Citizens of the world don't need an American Constitution. Shallow pragmatism, self-interest, making sure the government gives me everything I want and isn't constrained by anything so silly as some document that's over 200 years old (can you imagine?!)--those are the things "these kids today" believe in. If that sounds a bit, well, childish to you, all short-term consideration, all emotion, all magical thinking, welcome to the future.
THOMAS MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
If polled how many of today's young do you think would agree with the sentiment expressed above? What percentage would grasp it, even?
If we're moving beyond fidelity to the Consitution and instead taking the shortcut of changing the laws to the currently-prevailing popular opinion/will, what do you imagine will change next? People like Robert Wright assure us (Nonzero) that we're inevitably pulled towards greater (more Leftist-friendly) things, but I'm not convinced. Large parts of the world today sure seem to have regressed (w/r/t beliefs, cultural perspective, etc) and I don't know why something similar couldn't happen here. If rights are "just something the government gives us" you'd better be damn sure you have and can keep a government that gives you everything you want. You'll feel pretty upset when it doesn't, too, and wont' have much recourse--well, not by "legitimate" means, anyway.
Hyperbolic, sure, but once you take the idea of not being bound nor constrained by the Constitution seriously and follow it for a bit you find all sorts of interesting outcomes are possible.
Re: jr565:
was desegregation popular to people in the south?
Hard to say, but in the 1960 census, the Black population of Mississippi was 915,743, the White, 1,257,546. If we assume 95% support for desegregation in the Black population, and only i>20% support among the White population, we still get over 51% support among the population.
The proportions in other Southern states would be different (I chose Mississippi because it was the most extreme; next would be South Carolina, I think), but I would not be surprised if desegregation actually enjoyed majority support across much of the South; it's just that a large part of the political support for desegregation would have come from a segment of the population being actively suppressed by the government.
I know that wasn't your point -- I just wanted to make this point instead.
Laws adapt and change according to societal norms, which is as it should be, or else we would still be a country that owns slaves and doesn't allow women to vote. It's called progress.
Laws don't have agency. In both those cases laws were changed through a legislative process. Courts should not be changing laws based on the latest Gallop poll.
Georgie said...Laws adapt and change according to societal norms, which is as it should be, or else we would still be a country that owns slaves and doesn't allow women to vote. It's called progress.
Those changes were accomplished by changing what the law said. Changing what the words are supposed to mean destroys the basis of law, and not in ways you might like.
Take the 19th Amendment. "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." After the Islamic takeover, we just say that only women who are unmarried orphans with no brothers may vote. All other women will have votes cast for them by male relatives.
Or the people elect a legislature which votes an appropriation to build a highway that almost everybody wants. And then the governor takes the money to build a new football stadium for a pro team, because he says when the legislature said "highway from Boonville to Lewisburg", they meant "stadium in Clarkston".
Will that be "progress"?
I don't know when a constitutional amendment that was passed for the purpose of preventing southern states from mistreating former slaves became one that meant states could not limit marriage to one man and one woman, but certainly not at the time when it was passed. I also seem to remember many women who attempted to sue under that amendment for the guaranteed right to vote and they were unsuccessful. And that right wasn't guaranteed until the passage of the 19th amendment. A society that claims to follow the rule of law should actually follow the laws as intended. If the laws are unjust change the laws through the appropriate process not through interpretation of existing laws.
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