Within the space of a few hours, judicial tidal waves rolled across the country from opposite coasts last Tuesday morning. President Barack Obama secured the day’s first headlines, announcing Judge Sonia Sotomayor as his nominee to the U.S. Supreme Court.
But California grabbed its share of the spotlight shortly thereafter, when the state Supreme Court voted 6-1 to uphold Proposition 8’s ban on same sex marriage.
Aside from the relative rarity of court-generated news making the front page, let alone forcing urgent breaking news updates over the course of the day, the two announcements seemed to have little in common. But as Washington insiders debated whether Obama’s announced criteria of a justice’s “empathy” was a valid basis on which to base a judicial appointment, California’s Supreme Court was providing a real-world, real-time example of the relevance of such thinking.
When David Souter announced his retirement, Obama declared “that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient” for his selection. Simply put, the President’s contention is that laws matter but that judges need to take into account the impact their decisions would have on people affected by the ruling. His word choice suggests that justice should not be administered blindly, but rather that the letter of the law should be adjusted to accommodate for the ramifications of its application.
Battalions of conservative legal thinkers have argued against that line of thinking, making the case that the law must be applied equally to all members of the community, and that a judge who weighs the personal effect of her decisions could end up offering different decisions for individuals according to wealth, gender, race, or any number of other demographic characteristics. But this debate has taken place largely in the abstract, absent the type of tangible examples that can make the discussion more accessible to laypeople.
Enter Chief Justice Ron George and five of his California Supreme Court colleagues. While their decision to uphold Prop 8 was not surprising, the wording of their decision provided important insight into their thinking. The justices went out of their way to make it clear they were not offering their own opinion on whether or not same sex marriage should be legal. They wrote that they were not deciding whether Proposition 8 “is wise or sound as a matter of policy or whether we as individuals believe it should be a part of the California Constitution.”
Instead, they made it clear that they were “setting aside our own personal beliefs and values” to rule only on whether the initiative violated the state constitution. In other words, George and his fellow justices were saying — in language that bordered on the apologetic — that empathy could not play a role in their decision but that they must rule based solely on legal constraints without regard to the effect on the parties involved.
At the risk of reading tea leaves a little too closely, it appears that George and the other justices were trying to say that while they personally supported the concept of same sex marriage, they also recognized that could not be the basis for a decision to overturn Proposition 8. His own opposition to same sex marriage notwithstanding, Barack Obama would disagree.