Explicit Blame-shifting

One of the difficulties that those of us who claim that courts and legislatures are not always engaged in a zero-sum struggle for power have is in making the empirical case convincing to skeptics. Indeed, most delegations and deferrals of power by elected officials to the courts are politically profitable precisely because it allows politicians to claim that they deplore what courts are doing. Kabuki dances like the Schiavo case don’t work if politicians admit that they wanted courts to take the heat without actually changing the substantive outcome. There are ways of proving of this, of course, starting with looking at things that politicians do to empower courts and tools they could use to retaliate against courts but don’t. The fact that making the case requires arguing the stated intentions of political actors are disingenuous, however, does create obvious empirical problems; relying on “revealed preferences” can led to unfalsifiable tautologies pretty quickly if your aren’t careful.

For obvious reasons, then, I was very interested in the quote dug up by Kevin Drum:

Signaling a likely veto if it does pass, Gov. Arnold Schwarzenegger’s spokeswoman said he preferred to let judges sort out the legality of gay marriage; such a case is moving toward the state Supreme Court.

Kevin is right that you don’t hear a politician admitting that he wants an issue left to the courts very often. This is as somewhat unusual case in that one political branch is willing to deal with a divisive issue and the other doesn’t, so Schwarzenegger can’t play the “those damn activist courts!” card. It is important to note, though, that from slavery to abortion it’s not at all unusual for politicians to duck and let the courts take the hit on difficult issues. It’s just unusual for them to admit it.