A Steaming Pile of Outrage Porn
Imagine you’re Crash Davis. Yes, the minor-league baseball player memorably portrayed by Kevin Costner in Bull Durham. You know you’re not going to make it to the big leagues. You even know your team is unlikely to win in the minors. But you’re a professional, and you give it all you’ve got.This, it seems to me, is the position of Appellate Judge Jeffrey Sutton, a respected conservative thinker who’s unlikely to make it either to the Supreme Court bench or the right side of history when it comes to same-sex marriage, but who is still a judge’s judge, a consummate professional. What would you do?
This lede, from Jay Michaelson’s “All The Wrong Reasons To Ban Gay Marriage” in The Daily Beast, tells us exactly where the author is going … and it’s going nowhere pretty. Instead of offering a thoughtful deconstruction of Judge Sutton’s majority opinion in DeBoer v. Snyder, he’s going to whine, snark and ad hominem Sutton to death.
Granted, so much is to be expected from anyone who deliberately writes for The Beast, one of too many e-zines that exist simply to grunt out steaming piles of outrage porn for the consumption of a polarized, perpetually angry public. Writing for these vendors of schlock journalism must be easy — all you have to do is emote for 1,500 words or so.
But whine, snark and ad hominem arguments aren’t legal analysis. I don’t mean they’re not legal analysis because they come from a journalist or a blogger; I mean they’re not legal analysis even if Justice Anthony Kennedy does it, as he did in United States v. Windsor (2013). Whine, snark and ad hominems are a feature of playground name-calling, which is often interchangeable with political rabble-rousing and (unfortunately) certain brands of comedy.
Let’s begin with a paragraph from Sutton’s majority opinion that ought to be uncontested wisdom:
Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us — just two of us in truth — to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit.
Here, in just eighty-six words, is crystallized the central objection so many people have to judicial activism, whether it be on behalf of the left or the right: the courts’ power of judicial review does not exist to pass judgment on the moral imperatives of the public. The question in such legal matters is whether a law transgresses the bounds of the Constitution, not whether they offend the refined sensibilities of the judiciary.
But Michaelson isn’t having any of it:
First, and least convincingly, the court argues that it is better “to allow the democratic processes begun in the states to continue” debating the merits of same-sex marriage, rather than “take a poll of the three judges on this panel.” As noted by Judge Martha Craig Daughtrey in dissent, this is an outrageous position. The whole point of courts is to be counter-majoritarian, i.e., to interpret the constitutional principles that constrain majorities from oppressing minorities.
This is false: The whole point of the courts is to apply the law. Occasionally, the law that must be applied is the Constitution, which is “the supreme Law of the land”; only when federal or state laws do transgress that “supreme Law” are courts properly counter-majoritarian. By Daughtrey’s (and Michaelson’s) rationale, no one on the left should have a problem with the frustration of the will of the majority and the protection of minorities from oppression in Burwell v. Hobby Lobby (2014); the whole point of the “counter-majoritarian force” theory is to prop up results-first-premisses-to-follow judicial intervention.
As shallow and wrongheaded as the “counter-majoritarian force” argument is, at least it has the merit of appealing to a legal theory. Not so with Michaelson’s next argument:
Next, the court makes a totally different argument: constitutional originalism. The claims about democracy and precedent vanish from Judge Sutton’s opinion, which now observes that “From the founding of the Republic to 2003, every state defined marriage as a relationship between a man and a woman,” and concludes that “the Fourteenth Amendment permits, though it does not require, states to define marriage in that way.”Wait, what? From the founding of the Republic until 1967, many states defined marriage as a relationship between two people of the same race. Does that mean that the Fourteenth Amendment permits states to define marriage in that way?Of course not. This is why “originalism” is so beloved of cultural conservatives: All it really means is “keep the status quo.” By originalist logic, segregated classrooms, compulsory prayers in school, and bans on contraception are all magically constitutional, simply because they were present in some older time of yore. (Of course, the same logic would forbid corporations from making political donations, but originalists somehow don’t get around to that point.)
In these three paragraphs, Michaelson turns into a raging demagogue, pressing all sorts of buttons to reach past our critical apparati and yank our emotional reflexes. Originalists, you see, are big meanies who like to kick puppies and make children cry for fun; given their way, they’ll march us right back to the days of Jim Crow and “in the kitchen, barefoot and pregnant”. Without going off into multiple sidebar discussions on any of the individual points, it still remains that this argument piles together several bugaboos into one massive red herring.
However, Judge Sutton’s argument isn’t ideologically conservative but rather pragmatically conservative. The point of judicial restraint is that, if our society is going to change, that change should be organic and empirical, not imposed by a judicial élite working from an abstract theory of “what ought to be”.
The most outstanding example of judicial adventurism is Dred Scott v. Sanford (1857), which attempted to force a resolution on the question of slavery based on a bad interpretation of property rights, and instead insured the eventual outbreak of the Civil War, over a hundred years of sectional mistrust, and racial antipathy. Equally devastating in its own way was Roe v. Wade (1973), which created a right to abort out of thin air and remains hotly contested. And in years to come we may all learn to regret Citizens United v. Federal Election Commission (2009), which expanded the concept of corporate personhood. To date, few supporters of judicial activism have come to grips with the enormous social and economic costs that have been incurred by jurists reading their ethoi into the Constitution.
The latter case demonstrates another point: progressives should fear judicial activism. I’ve said it before, and I’ll say it again — for all their triumphalist talk about “the inevitable march of progress” and the “right side of history”, any setback will find liberals openly fearing that the toothpaste can and will be put back in the tube.
And well they should. Theoretically, an activist judiciary riddled with social conservatives could roll back whatever changes progressives like. The likelihood of a modern conservative activist judiciary rolling back Brown v. Board of Education (1954) or Griswold v. Connecticut (1967) is so slender as to be non-existent; however, Roe, Windsor and arguably Lawrence v. Texas (2003) would make the short list. It’s precisely the pragmatic, “don’t rock the boat” restraint that has saved Roe in the past.
Imposing Judicial Morality
These are merely the most egregious errors. I haven’t touched, for instance, on Michaelson’s irrelevant traipse over the “biblical value” of polygamy to dismiss natural law arguments offhand as “codswallop”. (Polygamy isn’t a “biblical value”; it was merely a fact of early Hebrew society that the Jews eventually gave up.) Michaelson’s post is simply too long — and too riddled with meretricious badmouthing — to warrant further attention.
Rather, the whole of Michaelson’s rant can be summed up thus: “The courts shouldn’t impose conservative morality and values on us; they should impose progressive morality and values on us.” That the courts ought not be in the business of imposing any values other than those “we the people” have written into the Constitution — which is what originalism is really about — is a position Michaelson has yet to comprehend.