Our Court Masters

• Publication year: 2021

94 Nebraska L. Rev. 401. Our Court Masters

Our Court Masters

Chad J. Pomeroy

TABLE OF CONTENTS

I. Introduction .......................................... 401

II. The Gun or the Salute ................................ 405

III. The Limits of Volunteerism ........................... 409

IV. Different Views of How Courts View Their Role ........ 412

A. The Dynamic Court View and the Constrained Court View of the Courts .......................... 413

B. All Views Eventually Answer to Society ............ 415

V. When Courts Exceed Perceived Social Norms, They Risk Their Own Legitimacy ........................... 419

A. The Resistant Psychology of Contrary Directives . . . 419

B. Examples of Courts Stretching Social Norms ....... 425

C. Legitimacy Undermined: The Fallout of Stretching Social Norms ...................................... 432

D. A Contemporary Narrative ........................ 435

VI. Conclusion ............................................ 439

I. INTRODUCTION

Imagine a hypothetical state. We will call it Calore, newly admitted splitting off from California and Oregon.

Calore is a politically moderate state, given its derivation from the northern, and relatively conservative, part of California and the coastal, and relatively progressive, part of Oregon. In fact, given its roots, Calore is a good example of the fiscally moderate and socially liberal viewpoint so many politicians claim to possess.(fn1)

Given this political landscape, the people of Calore (colloquially referred to as "Calormen") decide to legalize (and tax receipts on the sale of) a wide variety of drugs that are illegal to possess, consume, or sell in neighboring states. They do so by amending the Calore Constitution by voter initiative (with the proposed amendment referred to as "Amendment 3").

Prior to the vote, there was a robust public debate. Conservative members of Calore decried both the moral failings often associated with drug use and the negative economic externalities accompanying widespread drug usage. A coalition of libertarians and progressives lauded the freedom of choice inherent in drug liberalization and the increased tax receipts the state might reap. After the debate played out (including significant contributions and participation by interested parties from outside Calore), the people voted on the issue at a duly held general election. The debate sparked a large turnout of over 60%, and voters overwhelmingly approved Amendment 3 by a vote of 65% to 35%.

Shortly thereafter, a new (and relatively newly appointed) bureaucrat in Calore's State Comptroller's Office(fn2) issued Letter Ruling 5.23.1(a)(ii), which concluded that Amendment 3 was contrary to a superseding provision of the Calore Constitution (as interpreted by said bureaucrat) and that, as such, it was null and void. This Letter Ruling, bearing the imprimatur of an official Finding of the Comptroller's Office, became administrative law, and all state employees (including police officers) immediately began enforcing it.

The voters for Amendment 3 cried foul, but the State of Calore was unmoved. Majority rule be damned, Amendment 3 was overturned because of the interpretation of an arcane set of rules issued by an appointed, low-level official.

What do you think of this narrative? Should a large majority of citizens have their voice silenced by a single, unelected government official? Do you think that superseding rules and laws should be respected and honored, no matter the circumstances? Or are you perhaps agnostic about the particulars of this case but troubled by the process by which Amendment 3 was disposed?

Whatever your view, this hypothetical is not far-fetched. This happens throughout the country, and it happens regularly.

Take a recent example from Utah. In 1995, Utah became the first state to pass a bill prohibiting the recognition of same-sex marriages performed in other states and nations.(fn3) Thereafter, in 2004, Utah voters approved a ballot referendum on Utah Constitutional Amendment 3, which defined marriage as the legal union between a man and a woman and which restricted unmarried civil unions.(fn4) This referendum was approved by 65.9% of those who voted on it.(fn5) This means that 593,297 Utah citizens (of the approximately 900,000 who voted) voted to approve the amendment.(fn6)

That majority held until 2013. In March, three couples, including one previously married in Iowa, filed suit in the United States District Court for the District of Utah, arguing that Amendment 3 violated the Due Process and Equal Protection Clauses of the United States Con-stitution.(fn7) On December 20, 2013, the court ruled the amendment was unconstitutional, with District Judge Robert Shelby expressing his opinion that Amendment 3 "does not . . . elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples."(fn8) Thus, one man overturned the vote of nearly 600,000 people.(fn9)

Obviously, gay marriage is a topical, and controversial, issue.(fn10) Ultimately, this Article has nothing to say about that issue.

Instead, this Article seeks to examine the process that occurred in Utah, and which occurs regularly throughout the country in a wide variety of circumstances. We take it for granted that courts are the ultimate arbiters of justice and equity, but does it really make sense that one person (or cabal of people) should overrule a whole state? If so, when does that make sense? This Article attempts to tackle these questions and ultimately argues that more people should be troubled by cases like this (whatever your personal views) and by the role that courts often take upon themselves.

This is because, in the end, courts risk losing legitimacy if they deviate too far from perceived social and cultural norms when addressing legal issues. Such a limitation is fundamental to the nature of our legal system and is baked into the American jurisprudential system. Our courts ignore it at our peril.

The nature of this limitation can be seen when one looks at our legal system in a broader context. Part I begins by examining our mechanisms of enforcement. In America, laws are enforced by force or by consent. Though a rough statement encompassing many facets of legal, ethical, and even moral behavior, that is essentially what laws reduce to: actors(fn11) follow laws either because they choose to do so voluntarily or because they are compelled to do so by force.(fn12) This is interesting (and relevant) because, while most laws are enforced by both force and consent, court rulings and directions are generally enforced by consent. Indeed, court rulings and judge-made law function almost entirely because our society chooses to follow and obey them.

The consensual nature of court-created law has a number of consequences. Most relevant here is that the cooperative relationship that exists between the law-giver and the law-follower ultimately requires the law-giver to take into account the views of the law-follower. When put generically, this proposition seems relatively uncontroversial, but Part II explores it in depth and reaches the relatively surprising conclusion that courts follow legal actors as much, or more, than the other way around. This is surprising because it inverts our general view of the way that laws work. Indeed, though we usually view courts as helping to craft and enforce society's agenda, courts actually act within a broader spectrum of social norms. This means, as is discussed in Part III, that courts that ignore (or exceed) these norms risk their very legitimacy (and, ultimately, whatever "cause" they seek to champion).

The Article concludes, then, that courts must be ever mindful of their role in our society and always cognizant of social norms and mores, and that they fail to do so to the peril of their own prerogatives and legitimacy.

II. THE GUN OR THE SALUTE

Most Americans take law enforcement for granted. Certainly, in academic settings, most scholars spend their time arguing about what the law should be or why the law is the way it is-few spend much time contemplating the pedestrian issue of whether or not rules are actually followed. They presume that people either follow the law or suffer punishment.(fn13) Here, though, it is important to spend a bit more time on this basic proposition.

Why is it, exactly, that people follow the law? Obviously, there are a host of reasons (moral, ethical, social, etc.). In large part, however, people follow the law for one of two reasons: either they are forced to do so, or they choose to do so-either they bow to the gun or they salute the flag.

Of course, voluntary compliance is not unique to the courts. Much of our system of American democracy is staked upon society's willingness to follow the rules.(fn14) Without its citizens agreeing to do so, the polity would fall apart under the burden of enforcement.(fn15) Certainly, this does not mean that there is never controversy surrounding the promulgation or enforcement of laws. No law will please all of the people all of the time. But our system has been constructed with this difficulty in mind. Representative democracy dictates that the majority will elect representatives who will, eventually, reflect the "general will."(fn16)

The alternative to this voluntary compliance (the salute) is...