I’m not sure I can recall a 48-hour period that has sowed more confusion that the 48 hours just past. Sandy Levinson, a straight-shooting liberal, says the Court’s gay marriage decisions are judicial camels (a horse designed by committee). I guess I’ll have to wade through the Court’s two opinions, but I doubt that will help very much.
Once again, Justice Kennedy has marred what might be a defensible holding in Windsor on grounds of federalism with reasoning about how anyone with skepticism that the principle of equality rightly understood extends to homosexuality is motivated by “animus” and bigotry. Well, at least he didn’t repeat his “mystery of the universe” clause from the 1992 Casey case—or at least I haven’t seen it yet. (That clause from Casey goes as follows: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What manner of metaphysical madness is this? When did Shirley MacLaine come to haunt the Supreme Court chambers?)
I’m no expert on standing and generally think standing should be narrowly construed as the Court has done here, but it seems to me that kicking Hollingsworth v. Perry on standing grounds has effectively removed “We the people” from the California Constitution. If “We the people” cannot defend what “We the people” do in amending the state Constitution by constitutional means (the initiative process) when our elected officials shirk their duties, we will have ceased being a self-governing people, to paraphrase Lincoln’s first inaugural address on this point.
And lo and behold, the Justice who grasps this point is . . . Anthony Kennedy! From his dissent (!) in Hollingsworth:
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice . . .
I’ll just add that we have made all kinds of exceptions and special carve-outs for expanded standing, most especially in environmental law. This requires some thought.
There’s also a great muddle in Obama’s pending war on coal, but I’ll address that separately. I need to head out for a long run right now as part of my prescribed anger-management therapy.
PAUL ADDS: I’m not sure agree with Steve that Sandy Levinson, with whom I attended law school, is a “straight-shooting liberal.” Notice how, at the end of the piece Steve cites, Levinson refers to Justices Ginsburg, Breyer, Sotomayor, and Kagan as “the moderate four.”
STEVE rejoins: That “straight-shooting” remark was something of an obscure pun, as Levinson has generally sided with the conservative view of the Second Amendment’s right to keep and bear arms, and against the liberals who deny it is an individual right. But I will add that I usually find Levinson much more direct and less “inventive” in his liberalism than most other liberal law professors, (i.e., Akil Amar, Larry Tribe, etc).