Writing Example

High Court Decision a Threat to Democracy

A strange thing happened in the U.S. Supreme Court’s recent Hollingsworth v. Perry decision. Even though the case focused on California’s Proposition 8, which banned gay marriage, the court was not divided along partisan lines. It turns out the court’s rationale for striking down Prop. 8 led to this scrambled division — a rationale that limits democratic liberties by preventing citizens from legally defending initiatives. Prop. 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens — that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot. When gay couples brought a suit against Prop. 8 that found the law unconstitutional, California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it. Consequently, individual proponents of Prop. 8 volunteered to appeal the decision in court. That raised questions of standing — whether Prop. 8 supporters had a tangible stake in the case and thus a right to appeal. The 9th U.S. Circuit Court of Appeals found they did have standing before finding Prop. 8 unconstitutional. A Supreme Court majority — Chief Justice John Roberts, joined by fellow conservative Antonin Scalia and liberal justices Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg — took the opposite view. They held that Prop. 8 proponents, although they had organized the ballot initiative, had not “suffered a concrete and particularized injury.” That meant lower courts had erred in granting them standing to defend the law. Consequently, an earlier court decision in which California participated (which found Prop. 8 unconstitutional) stands. The court dismissed any consideration of gay marriage on its merits. They instead argued that only state representatives, and not Prop. 8 proponents, had the right to defend the initiative in court. The ruling has far-reaching implications. Citizens initiatives exist in part to bypass state officials when those officials are not serving the will of the people. Many initiatives are pursued precisely because the current administration or legislature opposes them, making the state an unlikely defender of challenged initiatives. As Justice Anthony Kennedy stated in his dissenting opinion, “(The purpose of the initiative system) is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding.” This decision gives legislators, attorneys general and other politicians the virtual ability to veto initiatives they dislike. Imagine if millions of citizens passed an initiative that limited legislators’ power — say, that limited their ability to raise taxes. Imagine then this law to prevent tax increases, constitutionally passed through the initiative process, is challenged in court. The state obviously has no interest in defending that law, or any law that limits its power. But the Hollingsworth decision means the state is the only body that can defend such an initiative in court, even if those individual citizens who officially worked to get the initiative passed wanted to participate. The same goes for any initiative that is at odds with current politicians’ interests. Imagine if a law (passed through an initiative) to limit water pollution was challenged by a local steel plant that aids economic growth. Politicians could decide not to defend the law in order to help their state look more prosperous at the expense of constituents’ health. What if an initiative to prevent crony capitalists from tax evasion was challenged in court? The politicians who are funded by these corporations would be under no obligation to appeal. The list of ways state power has expanded at the expense of the people is potentially innumerable. Regardless of one’s opinion of state-sanctioned same-sex marriage, the rationale behind the Hollingsworth case is a threat to our liberties. Again, Kennedy: “Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. ... In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice.” So much for “We the People.”