The Supremely Anti-Democratic Holding on Prop 8

I was intrigued by AllahPundit's characterization of the holding:

Forget the gay-marriage stuff for a second and focus on the process. Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

Could this be the case? Has the Supreme Court ruled that citizens have no rights vis a vis the permanent political class when that class chooses to ignore their popular (I mean that in the neutral, technical sense) intitiatives and referendums?

Consider the entire point of the initiative and referendum mechanism: It exists as a safety valve by which the citizenry can bypass or overrule the permanent political class if the permanent political class refuses to accede to actual popular will. (And there I meant popular in the non-neutral sense.)

In the matter of Prop 8, the citizens passed an amendment. The permanent political class of the government did not like this amendment, and ignored it. That class refused to make the case in favor of the amendment when another member of the permanent political class, a federal district judge, struck it down as unconstitutional. Now the proponents of the amendment come forward before other members of the permanent political class to argue that, because no other members of the permanent political class are willing to argue in favor of the constitutionality of an amendment the citizens passed, and this latest tribunal of the permanent political class -- the Supreme Court -- tells them no, only members of the permanent political class are authorized to plead on behalf a a citizen-promulgated amendment.

The dissent* doesn't speak of a permanent political class per se, but he does speak of the Court's championing of elected officials versus citizen petitioners:

The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation.

What an outrageous situation! The whole point of the initiative system is to bypass the elected representatives and pass the sorts of laws the permanent political class does not like but the actual citizens do, and the Supreme Court has effectively ruled this system to be a nullity -- because the exact same permanent political class the citizens sought to bypass can render any initiative inoperative by refusing to recognize it and by refusing to defend it in court.

The permanent political class apparently has the power of veto over the citizenry -- no matter what state law may say about the initiative process or the rights of the proponents of an initiative to defend it in court, it is now, supposedly, the law of the land that the federal government invalidates such rights and claws them back in favor of the permanent political class' right to rule.

Extraordinary. An extraordinary claim for any American to make, let alone five in concert.

*Corrected: I said this was "Scalia's dissent." How wrong I was. He voted with the majority. Kennedy wrote this dissent, joined by Thomas, Alito, and Sotomayor, who, if I had to guess, wanted to rule on the actual law in order to say gay marriage was required under the Constitution.

Now that I see that, I wonder what's going on here. I wonder if the majority opinion isn't a bit of gamesmanship written in order to preclude a different majority from ruling that gay marriage is the law of the entire country if the decision were to reach the merits.

On the "Permanent Political Class:" Some may object that there is no permanent political class -- we hold elections. Some representatives are beaten, others take the office. Judges retire or die and are replaced by other judges.

But that speaks to individuals. Individual representatives of the class are not permanent, as no human being is permanent. But the class itself endures and is eternal.

Or, perhaps, so it imagines.

posted by Ace at 02:57 PM

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