With the Supreme Court considering the constitutionality of the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, there has been a lot of great commentary on RedState explaining the importance of defending traditional marriage. Earlier today, Mike DeVine pointed out the blatant violation of our fundamental democratic principles committed by Jerry Brown’s and Barack Obama’s failures to defend our states’ and nation’s laws and then have the gall to say that nobody is allowed to defend those laws in court. But these two cases, and the Left’s strategy for litigating them, reveals another important aspect of their legal tactics that undermines the authority of the very courts they rely upon to enforce their agenda.
Those of us who are legal originalists (in fact the only internally consistent theory of constitutional interpretation) know that the Left has for decades used the courts and activist judges to thwart the democratic process by reinterpreting our constitutions and laws. This really started with the New Deal courts of FDR and the overturning of Lochner, which led to the vast and unconscionable expansion of the Commerce Clause. It has continued to this day, and the legal theories expounded by these activist judges were the ones that supported the Court’s decision to uphold ObamaCare. The use of the courts to thwart democracy and sound policy was bad enough when the Left was out of power.
Now that the Left controls the executive branch, they seem to have realized that they have an opportunity to push this strategy even further. In both the Prop 8 and DOMA cases, an activist Leftist (and, in the case of Prop 8 homosexual) District Court judge struck down the law at issue on constitutional grounds. Since then, the executive branches of the State of California and of the United States have refused to defend their own laws. Much ink was spilled on that subject, and it was a cowardly and undemocratic thing to do (again, see Mike’s diary).
Fortunately, in both cases someone stepped up. In the DOMA case, it was the Bipartisan Legal Action Group (BLAG), a group created by the House of Representatives to defend the act it had passed. In Prop 8, it was citizen advocacy groups. In both cases, the Leftists challenged these groups’ standing, that is their legal right to appear in court on the issues. Several great articles have appeared about the importance of the standing issue, pointing out that someone must have standing in court to defend our democratically created laws if an abusive executive branch refuses to do so. But the issue is even more important than we have realized. Here’s why:
Suppose our a state legislature, Congress, or the people (through an initiative like Prop 8) pass a law democratically. Now suppose at some future point the Left takes control of the relevant executive branch, whether it is the state house or the White House. Leftists then raise a bogus constitutional challenge to the law in federal court. The state or federal attorney general or solicitor general can defend the law poorly and superficially at the district court level. If they lose, they can try the same thing at the federal circuit court level. And the Supreme Court level. If they win at any level, they can decline to appeal. If any other group attempts to intervene, the Leftists will then challenge their standing to do so.
The upshot is that the Left only has to win at one level of the federal court system. They can then use standing doctrine to prevent the higher court (whether the Supreme Court or the Circuit Court) from hearing an appeal. Of course, the effectiveness of this strategy is limited because district court decisions are not binding on other courts, and circuit court decisions are only binding within the circuit. But it still could be an effective way to create legal precedent, or just strike down a law the left doesn’t like.
The bottom line is this: the standing issues are more important than we recognize. If the Supreme Court decides that the BLAG or citizen groups cannot defend their own laws, the Left will not only have the ability to destroy any law it doesn’t like, but it will be able to do so by winning in court only once at any level of the federal court system it chooses.