by One of the many ways the Constitution’s framers showed their collective wisdom was by embedding the rule of law into the very framework of our system of government. Judicial review of popularly enacted laws keeps the majority accountable to underlying constitutional principles. Of course, one person’s core constitutional safeguard is another’s judicial activism run amok. And so, in a range of hot-button “culture war” cases, lower courts have tried to steer clear of the dreaded “judicial activist” label by shifting their analysis from the constitutional principles themselves to the facts through which the principles may be invoked. At times these days, the rule of law looks more like the rule of facts.
You can read the rest of this piece here. I welcome comments.
Good article Rob. I think another angle here is the very artificial context of judicial fact-finding. This follows on your earlier post: a trial in a particular “case or controversy” is not a good venue for resolving broad questions of public morality and policy. The constricted rules of evidence, the principles of judicial economy, the limited resources and goals of the litigants and their counsel, and the “case or controversy” restraint itself, all guarantee that the adjudicated “facts” will not do justice to the subtleties of the “objective” facts.
Heck, even in a relatively straightforward “case or controversy” — say, a run-of-the-mill breach of contract case — a set of judicial “findings of fact” usually bears only superficial resemblance to the complex realities of history. All judicial opinions are highly artificial, almost artistic, constructs. In thirteen years as a commercial litigator, I don’t think I ever once saw a judicial or quasi-judicial (i.e. arbitrated) fact-finding turn out the same as my own “objective” reading of the file would have suggested.
Maybe that means I was a particularly good (or particularly bad!) advocate — I suppose I won some cases I “should” have lost, and I lost a few cases I “should” have won — and of course at the end of the day almost every case settled on some pragmatic basis short of objective reality. But anyone who has spent much time in the trenches is a legal realist to one degree or another. The court system is purposefully designed to resolve disputes with minimal social costs, not to find The Truth at all costs. To me, this is the greatest flaw of Judge Walker’s opinion — he writes as though he’s adjudicating The Truth about marriage for the ages.
I would hasten to add that the legislative process entails its own cost-minimizing processes, making it also of very limited utility for hashing out grand moral questions on which compromise is impossible.
This is a very cogent analysis, Rob. If we hadn’t become inured to the spectacle, it would be astonishing that one hitherto anonymous man could suppose himself qualified to authoritatively resolve, as matters of empirical “fact,” issues that involve layers of complex (and contested) political, historical, cultural, and philosophical concerns and commitments. Even if that man happens to be a judge. (A judge, as somebody said, is a lawyer who knows a politician.)
Rob properly calls attention to the judge’s finding of fact about what marriage is– a finding rejecting the view that gender is in any way essential to marriage. The judge’s favored definition was supported by the testimony of a Harvard historian, Nancy Cott. But how could a historian possibly declare a “fact” on this sort of matter? Indeed, what sort of “fact” did Cott and Walker think they were pronouncing on? It seems most likely that they regard marriage as a cultural artefact or convention. But if that is the sort of thing marriage is, how could a historian possibly declare that gender is not essential to what marriage is if Congress and most Americans and the majority of California voters believe otherwise? Such an assertion is comparable to a declaration that a word in English does not really mean what most English speakers think it means. This sort of assertion might be intelligible if Cott (and Walker) believed marriage is not conventional– that is has some sort of “natural law” essence, perhaps. But it seems quite unlikely that either Cott or Walker would make (or even tolerate) any such claim. Consequently, it is hard not to view the judge’s “finding of fact” regarding the nature of marriage as simply (though perhaps deliberately and carefully) confused– and “clearly erroneous.”
This summer I served on a jury in a federal drug smuggling case. I (along with ten other jurors) wasn’t happy with the verdict we reached (or rather didn’t reach), but I was sincerely impressed with the fair, professional manner in which the judge, his staff, and the attorneys handled the case. I left the experience somewhat reassured about the court system in this country. When it sticks to doing what it is designed to do, that is– namely, allow for a fair hearing to determine matters that can reasonably be described as “facts” and then apply the law to those facts. Conversely, the spectacle of these same procedures and personnel being used to resolve crucial and contested political and cultural issues would seem almost comical if it were not so subversive of our genuine commitments to democracy and rule of law.