F R O M    T H E    E D I T O R S
		California Court Rights an Injustice [Staff] • February 1997

In December a California judge enjoined against California’s Proposition 209, the California Civil Rights Initiative (CCRI), which would have banned all discrimination and special treatment in California on the basis of race, nationality or ethnicity. The judge believed that the state constitutional amendment might be itself unconstitutional.

In a surprising turn, another court has now sped appeal of the December injunction and will probably allow the initiative to go into effect. The roles are reversed again, and victory is returned once more to the bill’s supporters.
On Monday, February 10, a three-judge panel of the Ninth Circuit Court of Appeals scrutinized arguments made by an alliance of liberal civil liberties groups (called the Coalition for Economic Equity) that had immediately challenged the new amendment in court upon its passage.

For somewhat obvious reasons, the panel members were suspicious of the original ruling made by U.S. District Court Chief Judge Thelton Henderson on December 23. Henderson had “hijacked” the litigation by deciding to preside over the case himself instead of leaving it for the original judge to whom it had been randomly assigned. We too can be somewhat suspicious of Henderson’s neutrality. After all, he is a former member of the ACLU and former board member of the Meiklejohn Civil Liberties Union, both of which are involved in fighting Prop. 209. Clearly he has had experience in this field, and his intervention also smacks of activist interference intended to help the cause of the coalition opposing the bill.

One of the three judges in the new conservative panel considering Judge Henderson’s injunction, Judge Andrew Kleinfeld, remarked that “California is not like Serbia or Algeria, where first they have elections and then they decide whether to honor them.” Kleinfeld and his colleagues contend that judicial activism of this sort is judicial oligarchy.

What is so ironic is that Klenifeld and his colleagues Edward Levy and Diarmuid O’Scannlain are themselves guilty of judicial activism. They too have “hijacked” the case and have decided not to pass it along to another randomly assigned judge, but to retain it at least long enough to preside over the appeal hearing for Henderson’s injunction. It is more than fair to expect that they will grant the appeal, thus letting Proposition 209 go into effect indefinitely while the case is slowly chugging through the court system. That hearing is scheduled for the end of this month.

The opponents of Prop. 209 have made terrible legal arguments. For example, Mark Rosenbaum of the ACLU’s litigation team argues that granting the stay of the injunction (i.e., letting the amendment go into effect) would create “terrible confusion and hardship” because it would require quick turnarounds in admissions and hiring practices at state schools, and in the awarding of government contracts, But he is not arguing against the stay on legal grounds—only on grounds of expediency.

The ACLU should know better than anyone that similar argument from expediency have been used to support resistance to what they see as some of the most salutary change that this country has ever seen. Their arguments echo those made by opponents of the 1954 Brown v. Board of Education decision, which repealed segregation in public schools.

When Judge Kleinfeld asked Rosenbaum why affirmative action couldn’t simply be voted on, Rosenbaum tellingly responded, “The people of California are not in a position to decide if compelling state interests have been served. That’s up to the state.”

Hidden within the tangle of arguments is the idea of the compelling state interest. Rosenbaum’s principle is extremely authoritarian. In effect he is saying that the voters don’t know what is good for the state, and so they shouldn’t decide; instead, the state should determine what is good for the state. This is a remarkably anti-democratic thing for an ACLU lawyer to say, and moreover could favor either oppressed or oppressors.

The civil rights struggle provides an instructive example. Neither the government nor the citizens of the various segregated Southern states supported the 1964 Civil Rights Act. Luckily the Supreme Court intervened on the side of the oppressed. But 100 years ago the Supreme Court legitimized segregation in Plessy v. Ferguson. Clearly Rosenbaum’s state authoritarianism is a double-edged sword, aiding now the oppressors, then the oppressed.

It is of a piece with the wildest extremes of judicial activism. One of the most famous and of course conspicuous examples of judicial activism is the right to abortion, which was discovered in the Roe v. Wade ruling. A woman’s right to abort her pregnancy is two steps removed from the Constitution: Neither it, nor the principle on which is it based, are to be found anywhere in the Constitution.
The argument goes like this: The Bill of Rights contains a penumbra of privacy; that is, the first ten amendments require for their exercise a certain degree of privacy, and so they entail a broader right to privacy. The right to have an abortion is in turn founded upon (or found in) that imaginary (or at least invisible) right to privacy. It was completely immaterial that many states had laws expressly forbidding abortion, because the Supreme Court led by Warren Burger cast aside the democratically processed laws and invalidated them by judicial fiat.

The case of California’s Prop. 209 is similar. Suffice it to say that if it was arguable and ambiguous whether the Supreme Court had ground to stand on in Roe, it is not the same here. In Roe an appeal to deduction from implied ideas is made, whereas this case contains bald contradiction: Prop. 209’s phrasing is almost the same as the Fourteenth Amendment’s phrasing. The Constitution is mirrored in the apparently unconstitutional law, and mere anarchy is loosed upon the world.

It shouldn’t be too difficult to infer the danger of judicial activism. Because judges are appointed and confirmed, rather than directly elected, and because they serve for long terms (many life-long), they may become what conservative jurists call a judicial oligarchy. It is the familiar cry of the pained conservative that we need a uniform and equally applied process, carried out in good faith.
The first reaction many conservatives and libertarians will have upon hearing that Prop. 209 will (in all likelihood) go into effect, is to cheer. After all, the typical liberal judicial activism has been countered, and a major breakthrough—breakup—in American affirmative action will have been achieved. But in this case cheer should be tempered with regret that the success seems to have been won at the cost of conservative judicial activism, which, although less common than liberal activism, is equally destructive to constitutional democracy. Or, as Judge Kleinfeld himself put it, “The United States remains a government by the people and for the people, not one by the people with the highest LSAT scores.”

—[Staff], for the Editors