(The Return of) Ignatz, by Sam Heldman

Tuesday, January 18, 2005

the rule of law, and judicial politics
I have mentioned, a couple of times now, a recent Alabama decision involving a judge who had to rule on a minor's request to bypass the state's parental-notification law in order to have an abortion. I was waiting til the decision came up on the free internet somewhere, but that could take forever and I'm tired of waiting, so here's my description. If you have LEXIS -- or if you want to sign up for the free service of LEXISOne* -- you can see it at 2005 Ala. Civ. App. LEXIS 10, so you can fact-check my ass.

This sort of case gets brought because Alabama's statute, requiring a minor to notify her parents before obtaining an abortion, allows the minor instead to petition a judge for a bypass, which the judge is to issue if "the minor is mature and well-informed enough to make the abortion decision on her own" or if "performance of the abortion would be in the best interest of the minor." This procedure for judicial bypass is, to my understanding, required by the U.S. Constitution. In any event, the procedure is provided by Alabama law.

The undisputed facts here show a minor who is, for her age, quite mature: she has sought out information and advice from various counselors and adults as to what to do, and has decided that a pregnancy at this point would interere with her plans to get a college education and have a career in health care. Again, this is all undisputed. And she could have waited just a few weeks til she was 18, and then gone and had the abortion without asking or telling anyone -- but she decided that it was better to do it in the first trimester, and so needed the judge's approval since her parents had told her that they would cut her off financially if she ever got pregnant. Now, you may think that it would still be best if she told her parents; but that's not the relevant legal inquiry, as you can see from the quoted statutory passages above.

So what did the judge do? He denied the petition. In large part he made up reasons that (as the appellate opinions explain) were entirely unsupported by the evidence, or ignored the relevant law. But he went beyond that. He said that the minor was not mature, in that it is (he said) "not an act of maturity on her part to put the burden of the death of this child upon the conscience of the Court." The trial judge went on, dripping in sarcasm and moral condemnation:
The legislature, in its infinite wisdom, has determined that an unborn child who never has had even the ability to do any wrong, could be put to death so that his mother can play [sports]. ...
"Ah, but this young woman has more ambition than to play [sports]. Her possible ... scholarship is but the means to the end of her becoming a [health--care provider]. But what is the duty of a [health--care provider]? To save lives. Should her child die so that, possibly, she might later save other lives?
"There may be physical complications to an abortion. There may be psychological complications or consequences. She said that she does not believe that abortion is wrong, so, apparently, in spite of her church attendance, there won't be spiritual consequences, at least for the present."
He went on to say, "This is a capital case. It involves the question whether [the minor's] unborn child should live or die."

That just wasn't "law" in any sense. The judge's personal beliefs were driving the decision. The good news is that -- by a vote of 3-2, with the majority by no means made up of raving liberals -- the Court of Civil Appeals reversed. The rule of law still means something.

But this also makes me think about the ongoing conversation between Kevin Drum and Nathan Newman about Nathan's belief that progressive causes suffer electoral backlash when progressive judges do progressive things (and that therefore we shouldn't ask them to). Does anyone expect that the trial judge will suffer political backlash for having elevated his own moral beliefs over an adherence to the statute? I sure don't. I've never seen conservative politics suffer any political backlash from conservative judicial rulings in my lifetime. If progressive are suffering that sort of backlash, I think it's the fault of the political leaders rather than the lawyers or the judges.

* Note: I don't know if, in order to use LEXISOne, you have to be (or be willing to say you are) a lawyer. Maybe so.

posted by sam 2:10 PM 16 comments


This "conservative backlash" argument is what I call the "afraid Rush Limbaugh will say something bad about you syndrome." My point is that he is going to say something bad about you anyway.

For example, look a the "Declaration of Independence Banned in a school" story -- it is entirely made up. Just a lie. A lie designed to provoke a "conservative backlash." No "liberals" did anything of the sort, and they just made it up.

So I don't think it is good strategy to worry that defending ourselves will provoke a "conservative backlash."

By Blogger Dave Johnson, at 2:56 PM  

When you say that the "procedure for judicial bypass is, to my understanding, required by the U.S. Constitution" are you saying that you believe the U.S. Constitution actually requires such a procedure, or that it has been interpreted to require such a procedure?

Is the assertion that the U.S. constitution requires a judicial bypass procedure anything more than the "personal beliefs" of a majority of the Supreme Court? Is it "law" in the sense you mean when you sneer at this judge's ruling?

What do you suppose the politics of this are, in the great state of Alabama? Do you think that, in that fine state, the majority of the people favor a judicial bypass option, so that a minor can have an abortion without notifying her parents (and, importantly, without risking their refusal to continue to support her upon her attaining her majority)? Or do you think that the judicial bypass exists only because a lawless majority of the Supreme Court has required it as a condition of any regulation of access by minors to abortion?

In other words, which is the lawless act crying out for a political backlash?

By Blogger Thomas, at 5:19 PM  

Am I crazy, or aren't WE the ones who are supposed to create the backlash whenever conservatives attempt to inflict their personal beliefs onto our judicial system? As it is, we just shake our heads and "tsk tsk" them for being foolish mortals. Perhaps we need to learn to raise more hell about it.

By Blogger Doctor Biobrain, at 5:43 PM  

Thomas - You might want to work on your reading comprehension skills. As Mr. Ignatz had already mentioned, "In any event, the procedure is provided by Alabama law."

And I find it quite funny how quickly you went from supposing that perhaps this was just an intrepretation of law into automatically assuming that this was a personal belief imposed onto Alabamians without their approval. Perhaps you're right. But, then again, perhaps you're full of shit. That's why it's best to know what you're talking about BEFORE you start shooting off about "lawless acts", rather than wait to be corrected later.

But you probably didn't care anyway. Perhaps that's a lesson we need to learn in order to impose a backlash against conservative judical meddling: to shoot first and ask questions later (or not at all).

By Blogger Doctor Biobrain, at 5:54 PM  

Thomas, as the Dr. pointed out just above, you must be unaware of basic concepts of the rule of law. Sure, some people differ with decisions of the U.S. S.Ct. re abortion. Some people think that their methods of constitutional interpretation are very wrong. But (1) they are methods of constitutional interpretation, rather than being a big "screw you" to the system of law, and (2) they are in any event irrelevant to this particular case, given that the Alabama legislature enacted the statute that governed this case. Perhaps the judge thought that the legislature should not have enacted it, or that the legislature should not have been influenced by a Supreme Court decision he believed to be wrong. Whatever -- the fact was that the Alabama legislature enacted, and the Alabama governor, signed this statute. And the judge flouted it, based on his own personal (religious and perhaps also politico-whatever-you-want-to-call-it) beliefs. There was no justification for doing so; no plausible argument, nor any assertion, that the law was unconstitutional. That's not what judges get to do, dude.

By Blogger sam, at 8:27 PM  

It has always struck me as odd that even people who are strongly pro abortion-rights often believe that an adolescent should be required to get her parents' consent. All of the reasons for making abortion a right apply doubly in the case of an adolescent.

By Blogger Kyle McCullough, at 10:54 PM  

On the subject of Right Wing Republican "Activist" judges, here's a copy of a letter I sent to the Atlanta Journal-Constitution two months ago responding to a guest editorialist who blamed liberal activist judges for Roe v. Wade. This is lifted from http://buildabettermousetrap.blogspot.com/2004/11/attack-of-unicorns-reply-to-ajc-guest.html

Attack of the Unicorns: Reply to AJC Guest Editorial 11/8/04; Republican Myths and gullible voters

Dear Editor:

Regina Gulick writes that "Liberals need to listen to America's clear voice," but she reveals more than she intends about why Republicans win elections when she states "[o]n gay marriage, you imposed your abortion policies with activist judges 35 years ago, but we've gotten smart. . If you want your liberal polices to pass American muster now, you have to go through the normal American channels."

So what's wrong with that assertion? Only everything. Roe v. Wade was decided in 1973, 31 years ago, not 35. Decided by "activist judges" who were presumably appointed by liberal Democrats? Only if you turn history upside down and reframe Richard Nixon as a liberal Democrat, because he was the president who appointed Harry Blackmun, the author of Roe v. Wade. Nixon also appointed Warren Burger, the Chief Justice who joined the majority opinion. Dwight Eisenhower appointed William Brennan and Potter Stewart, two other justices in the majority. Byron White, one of two justices who dissented, was appointed by President Kennedy. For the history challenged, Nixon and Eisenhower were Republicans, Kennedy a Democrat.

And the "activist justice" who wrote the majority opinion in Lawrence v. Texas, the 2003 case which overturned Texas' sodomy law was Anthony Kennedy, who was appointed by that other liberal Democrat- Ronald Reagan.

Karl Rove must be laughing in his sleeve at the whoppers he has managed to pull off to win elections: the epidemics of elective partial birth abortions, gay marriages, and activist judges imposing their ultraliberal views on America. If gullible voters are going to blame liberal Democrats for those shibboleths, in 2008 I expect we will be held responsible for the rampaging herds of unicorns which are eating all the shrubbery in the Republican suburbs.

By Blogger James Finkelstein (Ga.), at 12:11 AM  

Apparently this judge believes that the young girl wants to be a member of his god-forsaking religion. This is why the separation of church and state is so important to maintaining freedom in our society. The judge is an employee of the state (government) and should be forbidden from trying to force other freedom-loving U.S. citizens to bow to his religious beliefs. Maybe this judge ought to step down...and go join the al Qaeda or Taliban, another bunch of religious nuts who want everyone to bow to their god-forsaking religious beliefs...especially the women of the world. In the meantime, if there were any integrity left in our judicial system, this judge would be reprimanded severely or censured for daring to try to FORCE anyone to become a defacto member of his religion. I bet this judge even claims he is a Christian, even though Jesus never forced anyone. This is the primary way one can discern who is a Christian and who is not. This judge isn't, no matter what he may claim otherwise.

By Blogger LiberalPride, at 12:31 AM  

Orcinus pointed readers to an excellent article on the subject of 'theocratic dominionism', which sheds a great deal of light on the seemingly deadheaded antics of so many religious fundamentalists.

The article may be found at publiceye.org, the website for Public Research Associates, and the original link and commentary can be found at Orcinus's column for January 17, 2005.

By Blogger Jon Koppenhoefer, at 1:48 AM  

I think anyone who was paying attention this past election realizes by this time that right now, elections are being decided by people who aren't paying attention.

If it serves somebody's purpose for there to be a "scandal" there will be, and if it's debunked few enough people are going to hear about it.

No matter what we do, we're not going to get the Fox viewers. We might as well make the natural base happy. Maybe some of them will even get engaged and start voting.

By Blogger Julia, at 2:33 AM  

Sam, if I understand your response, then all I need to do is assert that this decision is required by a theory of (statutory) interpretation--which theory may well be indefensible, but that argument is bracketed. The assertion that something is unconstitutional by a majority of the Supreme Court based solely on the majority's personal beliefs is surely not the only way to permissibly subvert the rule of law. I mean, why can't that game be played permissibly all the way down to the Alabama trial courts?

I'm thinking of a name for the theory of interpretation: maybe dynamic reflective republicanism! I'll write a short article and get it published, and then all's fine, right? There's no reason to treat cases of statutory interpretation any different from cases of constitutional interpretation. "We the People" adopted the US constitution--it is just as much law to be respected, or flouted, as the Alabama statute at issue.

By Blogger Thomas, at 10:06 AM  

I'm not a lawyer and think the judge moralized, which has no place. That said, I don't see where the judges had the right to go around the parents. This wasn't a case of child abuse. The court's ruling destined the girl to years of secrets and lack of counsel from those who love her most. Since the parents won't be consulted, how is the court to know the girl was truthful in her comments about them? Do the judges believe that 17 year old pregnant girls would never lie to hide from their parents?

By Blogger Eutychus Fell, at 3:00 PM  

I think you've missed the question of scale here.

The judge in this instance refused to enforce the law in one specific case. He did not seek to establish a precedent for the entirety of American law. Comparing this case to sweeping acts of Judicial activism like Roe v Wade is like comparing a playground bully to serial killer.

There is a backlash against Leftist judicial activism because it has de-democratize decision making in the U.S. The Left showed nothing but contempt for the concept that the extraordinary powers of the judiciary should be strongly constrained by precedence and common law. Now nobody trust Leftist judges with power because they believe they will abrogate the democratic process on the least pretext.

The real danger you should truly fear is that the Right will also abandon the concepts of precedence and common law and high off on their little experiments in Judicial activism.

Like gerrymandering, judicial activism looks very attractive when your views are ascendent but it turns disastrous when you lose power. The Left needs to relearn that limitations on power protect everybody in the long run even if they slow needed changes.

By Blogger Shannon Love, at 3:36 PM  

Thank you.

Now do you imagine this woman is going to be even vaguely interested in a conciliatory gesture? The right is doing what they're doing to punish the left, and we in some vaguely defined way are worse, we deserve it, nuts to the law and nuts to us.

It's not as if we'd be fighting in an undeclared war if we fought back.

By Blogger Julia, at 1:16 AM  

This may not be a great case for anyone to hang his righteous outrage hat on. The major issue may not be quite what it seems.

It looks from over here as if this, ah, mature young lady is asking the court to be a party to her plot to deceive her parents into paying for a continuing education which they have said they will not finance if she fails to conform to a simple and clear rule. This rule is not unusually or particularly strict. All we know is that she is not to get pregnant. We have not heard that aborting a pregnancy would be considered just as good, so she is already in violation of the requirement. We have heard about no other restrictions on sexual activity, even the most bizarre or promiscuous, so need draw no outraged conclusions about parents with antediluvian morals, if such they be. It seems that she obviously and grossly violated her parent's wishes by being clumsy or dumb enough to get pregnant. We hear no claims that it is all the fault of a rapist or space aliens. We are told nothing of mitigating factors. In what sense is she then entitled to her parents' continuing support? I note that there is no assertion that she'll be thrown out onto the street, or subjected to any sort of cruel or unusual punishment, but only that her parents won't assume the considerable burden of her further education. She failed to do her bit, are they really required to do theirs? And should the court be an accessory to this grotty plot?

The judge has not said that she can't get her abortion. But the judge won't be a party to the deception. This is what he did - it has little to do with what he said. I have no more sympathy than any other agnostic for preachy words from on high, but I won't get my blood pressure up over the judge's actual words without seeing a transcript or decision, and I'm not going to lie just to get onto Lexis - my degrees are in physics, not law, and if they don't want me on there, I'm not going to cheat my way past them. I do wonder if the transcript mentions anything about the judge's voice "dripping with sarcasm" - something of a giveaway that we're hearing only one side of a story.

I suppose plotting to rip off her parents does show some sort of maturity, though. Are these lucky parents paying her legal bills? Maybe she was screwing a lawyer - now that WOULD show some maturity.

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