I'm not a lawyer, so I've never aspired to being a judge. But I sometimes indulge in fantasies about the sort of judge I would be, if given the chance. I'd be a wonderful judge--patient, fair-minded, even-tempered, witty, self-deprecating--but above all, restrained. I'd be profoundly conscious of the unaccountable power the state had placed in my hands and of the danger of using it simply to enact my preferences into law.
Year after year, plaintiffs would come into my court urging me to declare laws unconstitutional. I would retire to my chambers and draft pithy opinions hammering home the same common-sense message: "Yes, the law you are challenging is indeed foolish. If I had been a legislator, I wouldn't have voted for it. But that doesn't give me the right to strike it down. You deserve a hearing, but you've come to the wrong branch of government for help."
That's the kind of judge I'd be.
Well, maybe I'd better back up a minute. That's the judge I'd like to be. Could I live up to those principles of restraint if I had a robe on and a gavel in my hand? To tell you the truth, I'm not sure. I hope so, but then I'm bound to stop and reflect on an unpleasant truth about the American legal system: Put a robe on somebody, even somebody intelligent, and he's very likely to lose all sense of proportion. There are plenty of judges who talk a good game of restraint, but once they have power in their hands, they behave as if they were philosopher-kings.
Consider, for example, the case of Jeffrey Amestoy, chief justice of the Vermont Supreme Court. He idolizes the late Judge Learned Hand, of the U.S. Court of Appeals, who considered virtually every major thrust of judicial activism a "patent usurpation" of legislative power. Amestoy endorses the warning of a prominent legal scholar that "when a democracy is in flux, courts may not have the best or the final answers." He acknowledges that "judicial authority is not ultimate authority."
Those are the things Vermont's chief justice is fond of saying. They aren't much of a guide to the decisions of his court. In December, Amestoy wrote a majority opinion ordering the state legislature to pass a law recognizing legal rights of same-sex couples. He felt compelled to act, Amestoy wrote, in response to a "claim to the secular benefits and protections of a singularly human relationship." The decision in Baker v. Vermont stopped short of requiring the state to grant same-sex marriage licenses, but it left no doubt that if the legislature didn't at least take a step in this direction, it would be in violation of the supreme law of Vermont. Existing state laws, limiting the privilege of matrimony to opposite-sex couples, are unacceptable.
And it will stay that way. By basing his ruling on the common- benefits clause of the state constitution, rather than on anything in the federal constitution, Amestoy all but assured that it cannot be challenged. The U.S. Supreme Court can't hear the case even if it wants to. About the only recourse would be a constitutional amendment by convention or public referendum, and those are as rare in Vermont as they are just about everywhere else.
Not a bad day's work for a graduate of the Learned Hand School of Judicial Restraint.
Now, same-sex marriage is a question on which reasonable people may differ. I don't propose to debate it here. But whichever side one happens to take on the issue, it seems fair to ask what on earth a court is doing deciding it. Ordering a legislature to rewrite a state's marriage laws is an extraordinary act, justifiable only by extraordinary circumstances. Just what might those circumstances be?
Obviously, the drafters of Vermont's 1777 constitution didn't have in mind sanctioning gay marriage. But in Amestoy's view, as in the view of virtually all modern liberal jurisprudence, a court need not worry about that. The job of the court is "to distill the essence, the motivating idea of the framers."
The justices of the Vermont Supreme Court are specialists at this. Three years ago, when they threw out the state's school finance system, they explained that "equal protection of the laws cannot be limited by 18th-century standards."
This time, in Baker v. Vermont, they ran the old constitution through their state-of-the-art distillery and concluded that when the framers said government was "instituted for the common benefit, protection and security of the people," that meant government had no business telling citizens whom they could marry.
Of course, the government has always done that, and it always will. If I lived in Vermont, I couldn't marry anyone under the age of 16, at least not without parental consent. I couldn't marry my sister, no matter how old she was. I couldn't have two wives at the same time. I haven't heard of a challenge to these laws lately. (Although under the Amestoy distillation of the 1777 constitution, I wouldn't be surprised if somebody tried one. They might have a logical argument.)
The point is not that same-sex marriage is the moral equivalent of cradle-robbing, incest or bigamy. Of course it's not. The latter three are objects of revulsion to virtually everyone in American society. Ninety-nine percent of us agree that they are wrong, and that it is reasonable to prohibit them. Same-sex marriage, on the other hand, is a divisive issue whose merits are being debated all over the country, with opinions that vary dramatically according to geography, age, religion and social class.
And conducting debates of that sort is precisely what legislatures are for. The irony of the Baker case is that the Vermont legislature has been among the most progressive on issues of this sort. Three years ago it enacted, and the governor signed, a bill eliminating legal barriers against the adoption of children by same-sex couples. Gay-rights bills are introduced routinely. This wasn't a case of a court reluctantly taking up an issue that the people's representatives were stubbornly refusing to debate. This was a case of a court snatching an issue out of the legislature's hands.
Why would they do such a thing? To answer that question, it's useful to ask another one. What sorts of people get appointed to the Vermont Supreme Court these days, anyway?
There are five justices sitting on the court that decided Baker v. Vermont. They are all about the same age. The oldest is 59 and the youngest is 52. All arrived in Vermont--or returned there--as young law graduates to launch careers as activists in the heady liberal climate of the late 1960s and early '70s. One was a legal aid lawyer. One was a public defender. Four of the five worked in state government during the administration of Madeleine Kunin, Vermont's Democratic governor from 1985 to 1991. Jeffrey Amestoy was attorney general; Denise Johnson and Marilyn Skoglund were his assistants; John Dooley was Kunin's secretary of administration. Ten years later, all of them had made it to the Vermont Supreme Court.
That's not exactly a criticism. State supreme courts, whether we like it or not, are political institutions. I know of no study proving that the road to judicial wisdom runs through any particular sector of the legal profession. I certainly have no problem with governors appointing their friends and proteges to the bench. Who else would you expect them to pick?
I'm merely making the point that in law, as in academia and the arts, the past 25 years have brought to prominence a clearly identifiable cadre of people who have reached middle age with the convictions of their youth largely intact. Those convictions center around egalitarianism, a permissive social approach and an enthusiasm for employing the sometimes-blunt instruments of government to bring about social change. They are the current consensus values of the Vermont Supreme Court. In a contest against them, all the wisdom and restraint of Learned Hand is not going to prevail.
The real misfortune in cases like this is that there's so little public recourse against the decisions that are made. Roe v. Wade was a piece of constitutional fiction, but it remains the law of the land after nearly 30 years, and appears destined to live on indefinitely. Baker v. Vermont, based as it is on flimsy distillations and essences, has rewritten an entire state's marital laws without giving the voters a chance to be heard on the subject.
There's no shortage of schemes for what to do about judicial excess. There are proposals that would allow legislatures to override court decisions by majority vote. There are bills to impose term limits on judges who currently serve for life (such as federal judges and quite a few at the state level). There are bills that would simply strip courts of jurisdiction over subjects on which they are perceived to have gone too far.
When you stop and think about those sorts of drastic remedies, however, you begin to wonder if they aren't just about as bad as the disease. Judges need to be independent, to stand above politics and short-term popular whim. It would just help if they used their independence and their power with a little humility and common sense.
"One of the queer aspects of duty," Oliver Wendell Holmes once wrote, "is when one is called upon to sustain or enforce laws that one believes to be economically wrong and do more harm than good." Holmes didn't enjoy doing that, but he did it anyway, even when everyone else on the court disagreed with him, because he believed the rules of democracy required it.
Nearly a century later, we still have jurists in positions of real power who are fond of quoting such predecessors as Holmes and Learned Hand. Too bad we don't have a few more who try to emulate them.