Right, and the Prop 8 decision was procedural rather than ideological. They essentially ruled (for the first and only time) that a private party (here, the Prop 8 proponents) is not allowed to defend the constitutionality of a law--the State is required to make that argument.
Since the state declined to defend the law at lower courts, SCOTUS sent it back to that court with directions to dismiss it.
From Amy Howe at the SCOTUS Blog:
"Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."
And since it was just posted, here is the same type of explanation for the DOMA ruling:
"Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples."
Right, and the Prop 8 decision was procedural rather than ideological.
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
Why would ideology be any less influential in a closely-contested vote on whether a high-profile case procedurally warranted decision; if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
But the procedural precedent will stick. This isn't the first time a voter initiative was declared unconstitutional because the state government wanted it declared unconstitutional, and it won't be the last.
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
I disagree because justices habitually take the point of view that the principle established is more important than the result achieved. Therefore a variety of ideologies can result in a procedural decision that rules for a side that the justice may or may not personally agree with.
Take this case. Everyone knows that, no matter what happened in the court, California is going to have gay marriage soon. Popular support is running in that direction and it is just a question of time. So whether that happens now or in 3 years is not that important. Thus a justice who does not like gay marriage would not lose much overturning proposition 8.
But what do they gain? The result of their decision is that states which allow voters to pass propositions that the state government does not like, now have an approved legal trick to undo those propositions. Namely try to get sued, then fail to defend the proposition adequately. The court overturns it, and the proposition dies.
If you're a justice who thinks that voter propositions tend to be bad, providing that precedent could be more important to you than the outcome. But since that's a fairly esoteric legal issue, there is little correlation between your feelings about that, and how conservative or liberal you are.
Thus I would not be surprised if one or two of the justices who decided on that procedural ground actually are personally against gay marriage.
But, you say, why wouldn't they avoid that in a high profile case? The answer is because cases become high profile based on what the justices can do. After they act, they can make them unimportant. In this case they could have declared gay marriage legal throughout the entire country on constitutional grounds. (The case was brought in hope of that exact outcome.) Instead a technicality was established, and California got the result that would have happened anyways inside of 5 years.
That's the difference between the front page story on the NY Times and being buried as a couple of sentences in an article about a more important decision that was handed down at the same time.
You don't actually seem to be disagreeing with me, in that you don't seem to be making an argument that procedural decisions are less ideological than merits decisions. You just seem to pointing to an alternative ideological goal to the immediate policy goal, and pointing out that it is possible for ideology to be focussed on something other than what the media headlines of a case are about (which is a point I don't disagree with, though for simplicity in the context of the post I was responding to isn't one I wanted to raise.)
My disagreement was with the following part of what you said earlier:
...if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
My point is that the connection between the specific outcome of the case, and the outcomes that the justices care about, tends to be weaker for procedural decisions than merits decisions. Therefore we should treat procedural decisions differently from merits decisions. In particular, we should be more cautious about assuming that the underlying ideology matches the obvious headline.
(IANAL) Because a procedural justification doesn't set the right kind of precedent. It says that the means to get to the court weren't right, but you can try again. A decision based on the merits of the case sets much more powerful precedent by saying that this case and any case that follows with similar merits must be decided by lower courts according to the SCOTUS ruling.
Because a procedural justification doesn't set the right kind of precedent.
Right, so its a weaker outcome. But if we assume that justices have ideological concerns with policy outcome, there is no reason that the selection to make a procedural decision would be any less a subject to those concerns than the selection to make a merits decision. In fact, the fact that it is a weaker outcome (on the subject addressed by the substance of the case) than a merits decision with similar effect in the immediate case would in some cases be the motivation for pursuing it for an outcome-oriented justice.
Comments
Right, and the Prop 8 decision was procedural rather than ideological. They essentially ruled (for the first and only time) that a private party (here, the Prop 8 proponents) is not allowed to defend the constitutionality of a law--the State is required to make that argument.
Since the state declined to defend the law at lower courts, SCOTUS sent it back to that court with directions to dismiss it.
From Amy Howe at the SCOTUS Blog:
"Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."
And since it was just posted, here is the same type of explanation for the DOMA ruling:
"Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples."
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
Why would ideology be any less influential in a closely-contested vote on whether a high-profile case procedurally warranted decision; if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
But the procedural precedent will stick. This isn't the first time a voter initiative was declared unconstitutional because the state government wanted it declared unconstitutional, and it won't be the last.
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
I disagree because justices habitually take the point of view that the principle established is more important than the result achieved. Therefore a variety of ideologies can result in a procedural decision that rules for a side that the justice may or may not personally agree with.
Take this case. Everyone knows that, no matter what happened in the court, California is going to have gay marriage soon. Popular support is running in that direction and it is just a question of time. So whether that happens now or in 3 years is not that important. Thus a justice who does not like gay marriage would not lose much overturning proposition 8.
But what do they gain? The result of their decision is that states which allow voters to pass propositions that the state government does not like, now have an approved legal trick to undo those propositions. Namely try to get sued, then fail to defend the proposition adequately. The court overturns it, and the proposition dies.
If you're a justice who thinks that voter propositions tend to be bad, providing that precedent could be more important to you than the outcome. But since that's a fairly esoteric legal issue, there is little correlation between your feelings about that, and how conservative or liberal you are.
Thus I would not be surprised if one or two of the justices who decided on that procedural ground actually are personally against gay marriage.
But, you say, why wouldn't they avoid that in a high profile case? The answer is because cases become high profile based on what the justices can do. After they act, they can make them unimportant. In this case they could have declared gay marriage legal throughout the entire country on constitutional grounds. (The case was brought in hope of that exact outcome.) Instead a technicality was established, and California got the result that would have happened anyways inside of 5 years.
That's the difference between the front page story on the NY Times and being buried as a couple of sentences in an article about a more important decision that was handed down at the same time.
You don't actually seem to be disagreeing with me, in that you don't seem to be making an argument that procedural decisions are less ideological than merits decisions. You just seem to pointing to an alternative ideological goal to the immediate policy goal, and pointing out that it is possible for ideology to be focussed on something other than what the media headlines of a case are about (which is a point I don't disagree with, though for simplicity in the context of the post I was responding to isn't one I wanted to raise.)
My disagreement was with the following part of what you said earlier:
...if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
My point is that the connection between the specific outcome of the case, and the outcomes that the justices care about, tends to be weaker for procedural decisions than merits decisions. Therefore we should treat procedural decisions differently from merits decisions. In particular, we should be more cautious about assuming that the underlying ideology matches the obvious headline.
(IANAL) Because a procedural justification doesn't set the right kind of precedent. It says that the means to get to the court weren't right, but you can try again. A decision based on the merits of the case sets much more powerful precedent by saying that this case and any case that follows with similar merits must be decided by lower courts according to the SCOTUS ruling.
Right, so its a weaker outcome. But if we assume that justices have ideological concerns with policy outcome, there is no reason that the selection to make a procedural decision would be any less a subject to those concerns than the selection to make a merits decision. In fact, the fact that it is a weaker outcome (on the subject addressed by the substance of the case) than a merits decision with similar effect in the immediate case would in some cases be the motivation for pursuing it for an outcome-oriented justice.