By David Coleman | Daily Journal
Imagine that you are a state court justice in California on the short list for a lifetime appointment to the highest court in the nation. When a call comes from the White House inviting you for a visit to discuss the appointment, you have on your desk an opinion you have written in a pending case. That case, Strauss v. Horton, concerns the constitutionality of the Proposition 8 – the initiative that purported to overturn an earlier decision by the California Supreme Court that legalized gay marriage.
Your draft opinion argues that the rights of gays to marry are protected by the California Constitution’s equal protection clause. It asserts the power of a court to override majoritarian votes at a ballot box if the voters have denied fundamental rights to a disfavored minority group. You know that when released, the opinion you have penned will reduce your nomination chances to, basically, zero. Possibly some of the positions you espouse are shared by the president; but, you (as well as the president) know there aren’t more than a handful of U.S. senators who would vote to confirm your appointment (even if more actually agree privately with the positions you argue in the opinion.)
What would you do? Would you feed your draft opinion to the shredder and hit the delete button on the computer? Or would you follow legal principles to their logical end in spite of the consequences for your own career?
It appears that California Supreme Court Justice Carlos Moreno chose the second option. Moreover, he chose that option boldly when he could have embraced a more cautious course.
The six justices in the majority penned several opinions of their own. Three of those six, with whom Moreno joined in an opinion months earlier to make gay marriage legal, remained deeply uncomfortable with the corner into which they thought the court had been backed. Still, it was unlikely that the imminent reversal of course would be viewed as a much reviled Plessy or Korematsu cop-out – that is, a judicial imprimatur for the nation’s darkest prejudices and fears.
Even without voting with the six-member majority, Moreno could have voted to strike down the initiative; but then paired that vote with any kind of cryptic dissent (e.g. “I dissent” or a more expansive “I dissent for the reasons stated in our first decision on the matter”). Such distancing tactics are quite common in court opinions. Given the predictable heat associated with the issues the court was addressing, virtually anything other than standing squarely in favor of constitutional democracy, as Moreno chose to do in his dissent, would have been more politic.
An argument in support of the courage that Moreno displayed can be best bolstered by a “tick tock” (a term coined in banter between Press Secretary Robert “I don’t do tick-tocks” Gibbs and the White House press corps) of recent events. Here goes.
Ninety days ago the constitutionality of Prop. 8 – a ballot box proposition denying gay Californians the right to marry that had barely passed in the November election – was argued and submitted for decision by the California Supreme Court in Strauss v. Horton. At that point, every justice knew the outcome of the conference vote of the seven-member court. We learned last week, six justices voted to uphold Prop. 8. Thus, Moreno had known 90 days earlier he was the lone vote to strike down the initiative. His one vote of seven would make no difference in the outcome of the case. Publishing a strong dissenting opinion would serve little purpose other than to explain his vote.
His dissenting vote, as he forthrightly explained, was based on his belief that the protections guaranteed to minorities should not so easily be abridged by a majority vote purporting to merely “amend” instead of “revise” California’s chock-a-block Constitution that (like the state’s finances and political system) has been rendered dysfunctional and nonsensical from the years of special interest amending that drives California politics. Moreno believes, as he explained in his opinion: “[The majority’s decision] places at risk the state constitutional rights of all disfavored minorities … [It] weakens the status of our state constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”
Such a belief seems to most – lawyers and non-lawyers alike – to be precisely the point of setting forth enduring principles of equal treatment in a constitution or, more bluntly, the very raison d’etre for a constitution itself.
A little more than a month ago, Justice David Souter announced his retirement from the nation’s high court. Speculation began immediately that President Obama wanted to appoint the first Hispanic jurist to the vacant seat. Of course, a Latina would double down, by placing the first Hispanic and a second woman (the third overall) on a court in need of a diversity injection from both population subsets.
Not long after Souter’s announcement, informed speculation placed Moreno, the lone Hispanic justice on California’s Supreme Court, squarely in the center of a candidate pool that included two Hispanic women jurists (Judge Sonia Sotomayor of the 2nd Circuit, who got the nod, and Judge Kim Wardlaw of the 9th Circuit, who did not). But of course everyone faced vetting: a flubbed personal interview, a confirmation threat from a tax or domestic worker problem, or a provocative argument in a newspaper op-ed tied to one of the other candidates and Moreno’s chances would increase astronomically. Como se dice “Borked” en Espanol?
Last week decision timelines for both Obama’s nomination and the California high court’s gay marriage ruling converged. The convergence was confirmed by presidential adviser and guru David Axelrod, who reported Obama decided Monday night to nominate Sotomayor and to make the announcement the next morning.
Two hours later in California on that Tuesday morning, and after Obama introduced the world to Sotomayor, the California Supreme Court’s gay marriage decision was released. There, for all to see was Moreno’s defense of the right of gays to marry just like every other Californian. Moreover, it was supported by a full-throated challenge to court critics who decry the role of the courts in placing restrictions on the “will of the people” or “legislating” from the bench: “The equal protection clause is therefore, by its nature, inherently countermajoritarian. As a logical matter, it cannot depend on the will of the majority for its enforcement, for it is the will of the majority against which the equal protection clause is designed to protect.”
Under California’s court electoral system Moreno faces a – you might have guessed it – majoritarian vote at the ballot box in 2010 if he is to retain his seat on the California court. In an irony that surely did not escape his attention while he crafted his dissent, the majority’s six votes to uphold Prop. 8 almost certainly will result in a gay marriage initiative appearing on the same ballot along with his name in that election.
Similar judicial assertions of a court’s constitutional duty to check special interest ballot box propositions spelled doom for three appointees to the California Supreme Court made by then Gov. Jerry Brown in the 1980s. Those three jurists (Rose Bird, Joseph Grodin and Cruz Reynoso) were shown the door by the electorate for being too zealous in enforcing constitutional checks on the state’s death penalty jurisprudence.
After Sotomayor is confirmed, she will never have to suffer such an up or down vote by the electorate as must Moreno (who, ironically, traded a lifetime federal judgeship for the considerably more political, elected state Supreme Court seat). And of course, a vote on gay marriage will never be on a national ballot, either.
But with the security of a lifetime appointment, one can only hope that soon-to-be Justice Sotomayor will stand as courageously for the rule of law under a meaningful constitution as did Moreno – her nomination competitor – over the past month.
Moreno may have lost his chance for the highest judicial office in the land. But he should win the respect and admiration of all who want jurists to steadfastly support and defend that Constitution to which they swear allegiance in their oath of office.
David Coleman has been the Contra Costa County public defender since 1999 and a deputy public defender since 1974. Coleman taught criminal procedure and evidence at UC Berkeley School of Law from 1986 through 2002.
