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“Judgifying I Don’t Like” Hack Watch

[ 22 ] February 7, 2012 |

Whenever the courts strike down a law that discriminates against a group conservatives don’t like, every reactionary think and group blog must draw straws to see who gets to throw out the stale, transparently unprincipled cliches about judicial restraint. At the Heritage Foundation, the assignment apparently went to vote suppression guru Hans A. von Spakovsky, who delivers the goods:

As the Ninth Circuit writes, the question of how to define marriage “is currently a matter of great debate in our nation.” Unfortunately, instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.

Let’s leave aside the fact that judicial review is, in fact, a long-established part of the American political process. Given von Spakovsky’s deeply principled commitment to deferring to the judgment of legislators on contested constitutional questions, I wonder how he feels about the litigation attempting to get the signature policy achievement of the Obama administration ruled unconstitutional based on constitutional arguments nobody had thought of before 2010 (even when the same people were arguing for federal mandates to buy privatized annuities?) I think you know the answer!

Comments (22)

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  1. Ken Houghton says:

    I suspect the last link is misdirected, but am not willing to go to the Heritage site to find the correct one.

  2. efgoldman says:

    Gosh, Scott. You know that consistency, logic, and coherence are liberal values.

  3. MAJeff says:

    It’s been interesting to watch the anti-gay hate groups flat out lie about this decision “declaring a right to same-sex marriage.” There’s grifting to be done!

  4. DrDick says:

    I love watching the logical contortions and twisting of facts they engage in to justify their outrage at a finding completely in line with existing precedent.

  5. dr_eats_babies says:

    I love the result, but having read the decision and the dissent, it seems to me that Jason Mazzone is right that the decision doesn’t stand up to scrutiny:

    http://balkin.blogspot.com/2012/02/marriage-and-ninth-circuit-thumbs-down.html

    • T. Paine says:

      Um, Mazzone’s argument makes no sense, because he elides one of the key holdings of Romer, that the state cannot retract rights simply because of a bare desire to harm that group. Moreover, Mazzone distinguishes them on rather unconvincing grounds: (paraphrasing) “Judicially-construed rights are different from voter-granted rights.” That’s not persuasive when hacks like von Spakovsky use it, and it’s not persuasive when someone else deploys it to argue for a more expansive decision from the 9th Circuit. If Mazzone is serious about it, then he’s buying the conservative uses of it as well.

      • T. Paine says:

        Nuts to closing tags not working. Everything after “Romer” should be un-italicized.

      • Yup. I may do a long post about this, but Mazzone completely misreads Reinhardt’s opinion. The irrational stigimitization is a crucial element; nowhere does he say that merely taking away a right/benefit violates the 14th Amendment. In addition, Mazzone skates over the question of how you justify a broad right to same-sex marriage while being bound by Supreme Court decisions holding that sexual orientation does not receive heightened scrutiny.

        • Glenn says:

          Agreed that Jason completely elides the irrationality issue. But I think he is right that Reinhardt’s apparent placement of so much weight on the distinction between removing a previously-existing right and failing to grant that right in the first place is problematic. Of course, Romer has always been a bit problematic in that regard anyway, and I assume that’s how Kennedy likes it (and why I think there’s a good shot that Kennedy won’t care to clarify it by granting cert here).

          • T. Paine says:

            I’m failing to see the problem here. Re-reading Mazzone’s post, I’m troubled that he apparently can’t see the distinction between rights granted by a state constitution and those that are required by the federal Constitution. Any state is welcome to offer additional rights like marriage equality, but it can’t then turn around and remove those rights just because it doesn’t like the people who have them.
            Romer’s holding makes perfect sense, and extends all the way back to the 1973 Moreno decision (which protected “hippie communes” from losing food stamps because the USDA didn’t like them). So, for almost 40 years, decision-making based on a bare desire to harm the targeted class has been unconstitutional, it’s just that GLBT people are finally getting the same constitutional rights that everyone else has.
            This is one of those instances where I’m surprised that an otherwise accomplished legal writer makes such poor arguments – it makes me think Mazzone isn’t serious about what he’s written.

  6. Murc says:

    Let’s leave aside the fact that judicial review is, in fact, a long-established part of the American political process.

    Actually, you know what, let’s not.

    I’m prepared to say that, based on its track record, I am bang in favor of judicially imposed social policy removing the decision from voters, as it did in Loving, Brown, Roe, and Lawrence.

    You want absolute legislative supremacy? It’s a way to go. England works just fine that way. So do a bunch of other democracies. But it ain’t what we’ve got here.

    • c u n d gulag says:

      Murc,
      I’m a little less than thrilled with the thought of the Roberts SCOTUS making any social policy decisions.

      As a matter of fact, it scares the living sh*t out of me.

      Loving, Brown, Roe, and Lawrence were a long time ago – under different courts.

      I never thought I’d miss CJ Burger and his SCOTUS until Rehnquist came along. And if you told me I would, back when I was younger, I’d have told you you were crazy.

      And now, I miss both of those two old SOB’s. They, unlike Roberts, at least had some sort of minimal sense of social conscience.

      If Roberts couldn’t see that CU was going to be up there with the worst decisions in SC history, and didn’t bend/break arms, to right the situation, then how can I think this (possibly closeted gay) man will work to get the votes for gay peoples rights?

  7. LosGatosCA says:

    Mostly say hooray for our side.

  8. David Kaib says:

    It’s hard to see how a decision that only applies to one state cuts off the great debate.

    Then again, it’s hard to see how it’s a great debate when one side cannot come up with any plausible arguments.

    • Tyto says:

      It applies more broadly than just California: at least part of Reinhardt’s argument depends upon existing “civil union” legislation that provides equal treatment of hetero- and homosexual couples.

  9. chris says:

    Unfortunately, instead of permitting that debate to occur through the political process, decisions like the one issued today remove the question from voters in favor of judicially imposed social policy.

    I wonder how von Spakovsky thinks the Fourteenth Amendment was passed in the first place? The political process, wasn’t it?

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