In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one — repudiating activist judges independent of the substantive merits of the amendment:
One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court’s decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.
To the extent this argument rests on the idea that Prop 8 inflicted only “symbolic” harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld. The New Jersey Supreme Court’s opinion from 2006 would be one example. As I wrote at the time, I disagree that the difference between “civil union” and “marriage” is purely semantic and unimportant — though that doesn’t by itself mean courts should require the state to grant the designation to same-sex couples. Indeed, the fact that the word “marriage” is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon. Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same. I don’t want to rehash that argument here. At any rate, I don’t think Orin’s point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation. Under the rational-basis test, I suppose he’d say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.
The rational-basis test in Equal Protection doctrine and in other constitutional fields requires that a law (including a classification) be rationally related to a legitimate state interest. (When a classification affects fundamental interests, like voting, or discriminates on a suspect basis, like race, heightened scrutiny applies.) This ordinarily allows a poor fit between means and ends and accepts almost any governmental purpose as “legitimate.”
Assuming rational-basis review applies to Prop 8, there are two potential difficulties with a judicial-discipline rationale for it:
(1) When a classification affects what the Court sometimes calls “personal” or private interests, like sex and family-living arrangements, the Court has applied a more aggressive scrutiny while sometimes calling it rational-basis review. Think of the denial of food-stamp assistance specifically to “hippie communes” even though food stamps are not required benefits (Moore v. City of East Cleveland). Think of the decision in Lawrence v. Texas, which some people regard as a rational-basis case and which invalidated a state sodomy law although there were some really thin public-health justifications for such laws. Also, when a classification targets a group that has been subjected to widespread unreasoning prejudice, but nevertheless has not been given the extraordinary judicial protection of suspect-class status, the Court has similarly applied a heightened form of rational-basis scrutiny. Think, for example, of a law that strips all specific civil rights protections from homosexuals in order, inter alia, to conserve state enforcement resources to end discrimination that matters more or to protect the associational liberty of landlords. (Romer v. Evans) Or consider a city zoning restriction that forbids facilities for the mentally retarded (while allowing fraternity houses in the same neighborhood) on the asserted rational grounds that the home sits on a 500-year flood plain and that once every 500 years it will be harder to remove the residents for their own safety. (Cleburne v. Cleburne Living Center).
Based on the Court’s precedents, Prop 8 is a candidate for something more than ordinary rational-basis review both because it classifies in the personal area of family life and because it targets a class of people long subjected to unreasoning prejudice and opprobrium. If that’s right, a court might well reject a judicial-discipline rationale on the grounds that it is unusually likely to be a cover for animus against the group or because the fit between means and ends is almost arbitrary. Why, we might ask, take out our generalized frustrations with judges on the families of gay couples rather than in any 100 other cases or ways we might express this frustration? To say that their interests don’t carry much weight in a campaign against judges, that they are acceptable collateral casualties in a larger cause, feeds the conclusion that the political process is infected with at least a casual disregard of them.
(2) Even if we applied the customarily weak form of rational-basis review there would still be room to reject a generic judicial-discipline rationale. In the field of economic regulation, for example, rational-basis scrutiny has been applied in about the most flaccid way imaginable. Indeed, it has been so forgiving — finding just about any objective “legitimate” and any means “rationally” related — that it’s a wonder we bother repeating the mantra. It would be more honest, perhaps, if courts simply said, “Once we determine that the state is regulating an economic matter, in the way we understand what counts as an economic matter, the law will be deemed constitutional. Full stop.”
Using the version of rational basis that applies to economic regulations and classifications, suppose a state supreme court invalidated a state health-insurance mandate by finding some right (say, substantive liberty, property, or contract protection) in the state constitution that is infringed by a health-insurance mandate. Then suppose the people, using the initiative process, passed a constitutional amendment overruling the decision and imposing health-insurance mandates on consumers of health care. What would be the rational basis for such an amendment? Two candidates are offered: (1) Health-care rationale: The amendment is constitutional under the federal constitution because health-insurance mandates are rationally related to the legitimate objectives of controlling health-care costs and providing universal coverage. (2) Judicial-discipline rationale: The amendment is constitutional because, no matter whether health-insurance mandates are rationally related to the interests in cutting costs and providing coverage (indeed, even if they aren’t), it is rationally related to the people’s interest in showing judges who’s the boss.
Then suppose a group of liberty-loving citizens sue in federal court to have the amendment invalidated because it violates fundamental liberty rights of the kind endorsed by the state supreme court and because it is not even rationally related to any legitimate objective. Leave aside the fundamental-rights argument for our purposes. Under traditional rational-basis scrutiny applied to economic regulations, the constitutional challenge to the health-care rationale is surely a loser. It might be debatable whether insurance mandates are a good idea, but the whole thrust of rational-basis review is to leave rationally debatable propositions to the political process.
The challenge to the judicial-discipline rationale would be more interesting. Even under the traditional application of the rational-basis test to economic regulations, the legitimate objective and the means used to achieve it cannot be a complete mismatch. The relationship cannot be arbitrary. A legislature presumably could not, consistent with this approach, determine that banning the consumption of orange juice is rationally related to the state’s legitimate interest in preventing lung cancer caused by smoking cigarettes. It’s not that banning the consumption of orange juice is an irrational means to any conceivable legitimate state interest, like say, promoting the apple-juice industry. And it’s not that reducing the incidence of lung cancer caused by smoking is an illegitimate objective. It’s that the one has no relationship to the other.
So how would the judicial-discipline rationale fare in an economic case, like the challenge to the amendment imposing a health-insurance mandate? It’s not that rebuking or restraining judges can never be a legitimate objective of the voters or the legislature. Voters could, for example, use what Orin calls a Rose Bird strategy: recalling the judge or refusing to retain her in an election. And it’s not that the means of reversing a judicial decision can’t be a rational way of imposing a preferred policy, like say, mandating that everyone carry health insurance. It’s that achieving the legitimate objective of restraining judges by means that have no independent rational basis looks like a mismatch between ends and means. It’s not quite as arbitrary as comparing apples and oranges, because the voters have chosen something as an expression of their anger.
But unless we believe that the health-insurance mandate has an independent rational basis on its own merits — say, the health-policy rationale — then we really are saying that the rational-basis test is nothing but a splendid bauble. Voters and legislatures would have an automatic rational basis for anything they do, regardless of whether the substance of what they do has any rational justification. It can always be said that the state has acted to rein in the judges for a decision they’ve already made. And under that view, why couldn’t the voters issue a preemptive rebuke to the judiciary, anticipating a possible judicial decision in the future, even though the policy codifying the rebuke is irrational on its own terms? The judicial-discipline rationale is the justification that swallowed the analysis. X can impose harm on Y, in symbolism or substance, simply to punish Z. If that’s right, it would be more candid to give up the pretense and just say that in any case where rational-basis review applies, there will be no review at all.
There’s plenty to like about a strong presumption of constitutionality in most areas of public policy, and plenty of room for debate about what that “most” should and shouldn’t cover. But I can’t see much to like about an irrebuttable presumption of constitutionality. And whatever the merits of eliminating even minimal judicial review of almost all public policy, it is not an inescapable conclusion from the rational-basis precedents.
UPDATE: It occurs to me that the judicial-discipline rational might be more defensible if it has a sharper focus: it could be said that, whatever their views on the merits of the issue (like same-sex marriage), voters and legislators have a particular concern about judicial activism on that issue. In other words, they haven’t banned gay marriage because they have a generalized anger about judicial activism (which really does seem to pick on homosexuals in a random way), but because they have a particularized concern about judicial activism on this very question of same-sex marriage. This seems to me a stronger form of the judicial-discipline rationale because it is more directly linked to the amendment.
I see three continuing problems, however. One is that this more particularized judicial-discipline rationale starts to bleed into a substantive, merits-based justification. Why do voters and legislators think judicial activism in the area of same-sex marriage as opposed to judicial activism in many other areas must be reversed by an extraordinary action? That must have something to do with the merits of the issue. That leads to a second concern, which is that in cases where souped-up rational-basis scrutiny applies (Moreno, Cleburne, Romer, Lawrence), there is greater concern that neutral-sounding justifications (like the 500-year flood plain or saving food-stamp money) are simply a pretext for constitutionally impermissible animus or unadorned “moral disapproval.” Third, even under the most forgiving form of rational-basis review this more particularized judicial-discipline justification still provides an almost automatic and unreviewable self-justification for everything the legislature or voters do. Every reaction to a decision, or even preemptive action on the issue, could be said to reflect a particular popular concern with judicial activism on that very issue. Who could say otherwise, unless the rational-basis standard really demands minimal reasons that go to the merits of the issue itself?