And Sometimes When You Least Expect It, They Giveth It Back
BY Dennis Riley
J.B. Van Hollen was reelected Attorney General of the state of Wisconsin in 2010. Since the celebration that surrounded that victory, and the “red tide” it was part of, the Attorney General has spent a great deal of his time in federal courts. Most of that time seems to have been spent defending Wisconsin’s ban on gay marriage and its 2011 voter ID law. He’s had some victories along the way, but as of October 9, he was 0–for–2.
Before we talk about how that final box score came to be, it would probably be helpful to do a quick primer on the federal court system. The United States is divided into judicial districts. Districts cannot cross state lines, and every state gets at least one. No state gets more than two, but heavily populated states get more district judges, even if they don’t get more districts. District courts are trial courts, the places where two sides try to convince a judge – sometimes even a jury – of their version of the facts, the law, and the Constitution. The country is also divided into Circuits. Circuits are composed of sets of contiguous states, except, of course, for the Circuit that contains Hawaii and Alaska, states not contiguous to any others. Circuit courts are appellate courts – that is, they hear appeals from the losing side in a district court battle. They are charged with determining if the district court judge correctly interpreted the law and the Constitution. Then, at the apex of the system, is the United States Supreme Court, another appellate court taking complaints about the interpretations of the law or the Constitution at the Circuit Court level. It’s a bit more complicated than that, but I can see (possibly even hear) your eyes rolling, so let’s get to the issues at hand.
The African American and Hispanic communities in Wisconsin fought hard against the new voter ID law as it made its way through the legislature in the spring of 2011, but they lost. So they went to court. They delayed the implementation of the statute for the 2012 election cycle and, in fact, kept it at bay until just a week before I sat down to write this. During the time between the 2012 election and last week, they had managed to convince U.S. District Judge for the Eastern District of Wisconsin, Lynn Adelman, that the voter ID law was a violation of the equal protection clause of the 14th Amendment to the United States Constitution. They did so by convincing him that the law had the potential to disenfranchise 300,000 Wisconsinites who lacked the requisite ID to vote, and that those 300,000 state residents were disproportionately African American, Hispanic, poor and elderly.
Attorney General Van Hollen dutifully headed for Chicago and the 7th U.S. Circuit Court of Appeals to contend that Judge Adelman got it wrong. He won. A three-judge panel of the 7th Circuit ruled that the voter ID law did not violate the 14th Amendment equal protection guarantee and that Wisconsin could go ahead and implement the law in next month’s elections. The lawyers representing the African American and Latino organizations that had filed the suit in Judge Adelman’s court immediately asked the full 7th Circuit to hear the case, but on a 5–5 vote (a tie goes to the three judge panel), they declined to hear it.
Van Hollen’s victory, however, was short lived. On October 9, the U.S. Supreme Court told Wisconsin that it wasn’t ready to hear the arguments on the constitutionality of the law because it would just be too chaotic at this point to apply the law to the November 4 elections and therefore set aside the 7th Circuit’s decision. The ruling was, as I suggested above, careful to indicate that the Court was not saying anything about the constitutionality of the law itself, only that the 7th Circuit had been wrong when it said it was appropriate to implement the law for this election cycle.
Once he left Wisconsin, Attorney General Van Hollen never did win anything on the issue of gay marriage. Earlier this year the 7th Circuit heard an appeal involving the 2006 gay marriage ban and ruled the ban unconstitutional. The Justice writing the opinion – the highly regarded, if somewhat acerbic, Richard Posner – went out of his way to tell the Wisconsin Attorney General and his deputies that their arguments were perilously close to vacuous.
Posner’s ruling, if not his beautifully crafted and quite thoroughly scathing opinion, was in line with District and Circuit rulings all over the country. That consistency led the Supreme Court to refuse to hear the appeals filed by Attorney General Van Hollen and several other state attorney generals, essentially legalizing gay marriage in most of the country.
It may seem a bit strange to put issues of this magnitude into the hands of unelected judges serving with lifetime appointments. But for better or worse – or for better and worse – we decided more than two centuries ago that questions about the meaning of the U.S. Constitution, especially those questions that revolve around the rights of individuals, had to be decided in court. Rights belong to individuals, and the majority may not recognize or respect those rights at a particular point in time.
Courts, insulated from the whims of public opinion, can think more clearly about rights. That’s not always true, of course, but we hope it normally will be.
Just think about where this country was on the issue of gay marriage a decade ago. Then think about now. We are catching up with the courts, and in some cases even passing them. On that particular issue, America’s strange vision of democracy seems to have worked beautifully. We said “no” to gay marriage. Then some of us began to say “yes.” Then courts insisted that “yes” was the only answer consistent with our most basic principles. Now the majority of us are saying “yes,” and the issue is fading away.
Enough out of me.
Dennis Riley has been teaching about American government and politics since the year Richard Nixon was inaugurated as President of the United States.