Varnum, Law And Politics

Rather than continue the argument in comments, a few responses to Paul’s arguments against Varnum:

• It’s worth distinguishing between two arguments that Paul seems to be shifting between, one of which is true but trivial and one of which is potentially interesting but (at best) unsupported. It is, of course, true, that the text of the Iowa constitution did not “compel” the conclusion that the state’s ban on same-sex marriage was impermissible. But this is (as Paul seems to concede) not so much an argument against the court as an argument against judicial review, since any constitutional question of any interest is going to allow a number of reasonable answers. Given that the Iowa courts were empowered to review legislative enactments, however, this argument is essentially useless. Moreover, if taken seriously this would not just be an argument against judicial review but against high appellate courts in general; pretty much by definition cases heard by these judges require them to choose between multiple plausible interpretations of statutes and/or constitutional provisions and/or controlling precedents. Again, if Paul wants to define most of what appellate judges do as not-law that’s his privilege, but it doesn’t strike me as very useful or illuminating. Saying that politics influences how judges will choose among multiple plausible interpretations, though, is not to say that law is nothing but politics.
• If this is all Paul was arguing, though, it’s not clear why the Iowa Supreme Court merits any particular criticism, since it’s no more guilty of “legal hocus-pocus” than pretty much every consequential decision issued by every state or federal appellate court in the country. And, indeed, in the original article Paul suggests that the decision was particularly “egregious” “nonsense.” This would be a more interesting claim, but alas Paul’s bare assertions in its defense aren’t much more convincing than Ed Whelan’s. What, exactly, about the opinion is egregious, as opposed to simply an utterly banal exercise in choosing between multiple competing interpretations of a legal text — did it mischaracterize the relevant precedents? Was its interpretation in contradiction of the constitutional text being analyzed? Was it internally inconsistent? Not to my eye, and Paul provides no evidence that anything of the sort is true. Indeed, “question-begging nonsense” would be much better applied to Paul’s apparent assumption that because Iowa’s equal protection clause cannot be applied with mathematical precision the judges required to interpret it should pretend that it has no content at all.
• Paul also seems to be missing the point about why the comparison to Bush v. Gore is so specious (while a comparison to, say, Parents Involved or Heller would be much more accurate.) The unique problems with Bush v. Gore have nothing to do with it being a “ridiculously transparent bit of circular question begging.” Kennedy’s defense of the opinion’s equal protection innovations is indeed exceptionally weak (and on any standard of craftsmanship, I think, far, far worse than Varnum), but that’s not the key issue; the holding is not, in isolation, indefensible. The real issue is such problems as 1)the fact that the remedy was completely inconsistent with the purported holding, 2)the Court’s attempt to cabin the holding so that it wouldn’t apply to other essentially identical cases, and 3)the fact that the alleged constitutional violation was a result of a Catch-22 created by the Court’s previous directive. Such things, as opposed to the ordinary judicial act of choosing among multiple plausible legal meanings, really are inconsistent with the rule of law. The Iowa court did nothing comparable.
• I’m going to largely leave the discussion of Rosenberg — whose argument is considerably more problematic than Paul claims — to another post. But one accurate lesson of Rosenberg is that courts aren’t in a position to “impose” anything; judicial review itself only exists because of the substantial political support for it. And in this specific case, the Iowa legislature is free to propose overturning the court’s decision if it chooses. To claim that this particular constraint on the choices of elected officials — as opposed to the countless other “countermajoritarian” checks that are part of every state’s government — is particularly undemocratic is, to coin a phrase, question-begging nonsense. Maybe it is, but this really needs to be argued, not assumed, and any definition of democracy that contains no more normative content than “majority decisions of elected officials” is not going to be very attractive.