A friend of mine was excited to learn that the ruling finding Pennsylvania’s ban on marriage equality unconstitutional was written by the same judge who rejected the intelligent design curriculum in Kitzmiller v. Dover Area School District: U.S. District Judge John E. Jones III, a Republican appointed by the junior Bush.
My friend was amazed that a Republican appointee would make what are considered progressive rulings, and in today’s partisan world it certainly seems rare. But traditionally, that’s what judges do: they look at the law and the facts, legal precedent and the constitution, and they rule accordingly.
Any intelligent judge – and federal judges tend to be very smart – not blinded by irrational fundamentalist religious beliefs would have had to make the same ruling in Kitzmiller. And it’s pretty clear from the Supreme Court’s ruling in U.S. v. Windsor that laws blocking marriage equality are on their way out. All the good judges are making the same call: so far no federal district court presented with a challenge to state laws prohibiting same sex marriage has upheld them.
Though I’m not sure what’s going to happen to the appeal of the ruling striking down Texas’s “defense of marriage” law to the U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana, and Mississippi), which has an unfortunately high number of ideologues on its bench. Fortunately, most of the judges in this country are better than that.
Still, the courts are another example of polarization in the U.S. Linda Greenhouse, former Supreme Court reporter for the New York Times, did an excellent opinion piece last week on the ideological divide at the high court. She concluded:
I wonder whether the Supreme Court itself has become an engine of polarization, keeping old culture-war battles alive and forcing to the surface old conflicts that people were managing to live with. Suppose, in other words, that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.
A few years back, every time the Ninth Circuit Court of Appeals (which covers a slew of western states, including California) issued a ruling, it was referred to as an “outlier.” The coverage has changed, possibly because someone besides me noticed that the Ninth Circuit was the only federal appeals court in the country that had a majority of judges appointed by Democratic presidents. Democrats are not exactly outliers in this country. (I hope the makeup of the courts has changed somewhat; I last looked at this back when the junior Bush was in the White House.)
The real outliers are the Fifth and, to some extent, the Fourth (Virginia and the Carolinas), which issue frequent far right wing decisions. Most opinions from the rest of the federal courts may be more conservative than I personally would like, but they don’t reflect extreme ideologies.
As Greenhouse points out, we are not so lucky with the current Supreme Court. Justice Scalia clearly has an extreme view of what the law should be – his idea of what the founding fathers meant at the time, with no room for change or for anyone else’s interpretation of what they meant – and Justices Alito and Thomas are much the same. Chief Justice Roberts is a hair less ideological. Of the so-called conservative wing, only Justice Kennedy fits the traditional role of a conservative, but legally reasonable, judge. Which is why he’s a swing vote.
The four justices usually termed “liberal” – Justices Ginsburg, Breyer, Kagan, and Sotomayor – are not driven by an equivalent ideology. Yes, they are more liberal than the other justices, but they are also more likely to build their opinions on precedent rather than the moral certainty that they are right and everyone else is wrong.
I think the current extremism among some judges – like the right wing takeover of the Republican Party – will eventually collapse. It does not represent the reality of modern life in the U.S., nor does it truly represent much of our political history outside of the Civil War.
Chief Justice Earl Warren, who wrote the decision in Brown v. Board of Education (and, in fact, managed to get all the justices on board for a unanimous decision) was a Republican appointed by President Eisenhower. For that matter, he was also a politician, not a legal scholar; he previously served as governor of California. The Warren court is often called “liberal” – and, indeed, the John Birch Society (the Tea Party of the day) went around putting up billboards that said “Impeach Earl Warren” – but a look at the justices on the court during those years would not show them to be wild-eyed radicals.
Anti-discrimination laws, rights for those accused of crimes, free speech – all these things are supported by the U.S. Constitution and our history. It’s time we recognized that those who want to take us back to a world of great inequality are the true extremists in both our courts and our legislative bodies.
Note: This will be the last Legal Fictions post for awhile. My original intention was to write about law as it pertains to writing fiction, but I seem to be ranging far afield of that. For now I’m going back to writing on whatever strikes my fancy.