We will be sifting through yesterday’s rulings and their consequences for days and years to come. Ryan Anderson has been doing yeoman’s work on the digitized printed page and on television responding and reacting to Perry and Windsor. For a good summary and initial response, it doesn’t get much better than today’s Public Discourse.
One of the prominent elements of both decisions is the place of standing. In both cases, the Supreme Court had to determine whether one of the parties in the case had even the right to be involved in the case proceedings. In Perry, the Court ruled that defenders of Prop 8 did not have standing, and in Windsor, the Court ruled that defenders of DOMA did.
Standing was only an issue because the representatives of the executive branch in each case refused to defend the law in question in court. Thus the attorney general of the state of California refused to defend Prop 8, enacted by a clear majority of California’s citizens, and President Obama instructed his solicitor general to refuse to defend DOMA, enacted by an overwhelming majority of Congress and signed into law by President Clinton.
As Ryan notes, this is a scandal:
It is scandalous that the governor and attorney general refused to perform their duty. That abdication of their constitutional responsibility should not have prevented these laws from having a vigorous defense in court. This sets a disturbing precedent and distorts the balance of powers between the legislative, executive, and judicial branches of government. It would allow the executive branch to effectively veto any duly enacted law simply by refusing to defend it against a constitutional challenge.
This is surely right. Yet there is another element to this abdication that is deeply troubling and corrosive to our politics. It undermines the very social contract that we rely on in sharing a political and civic space with people with whom we deeply disagree about matters of fundamental import. Part of the deal we make in agreeing to a political culture is accepting that we cannot get everything we want. We accept the inevitability of losing on some things in exchange for the opportunity to make our case and have the chance of instantiating in law policies and principles we believe are crucial for the common good. We make this deal because it beats an absolutist approach that turns politics into a Manichean power struggle in which the only thing that matter is winning, and how we win is completely subservient to whether we win.
When it comes to the purpose of the executive branches, whether at the state or federal level, the duty is to execute and defend the laws passed by the legislative branches, regardless of whether the executive officials happen to approve of those same laws. This is part of the very purpose of the “rule of law”, and part of the compromise that makes principled politics even possible. It is why Lincoln defended the legality of the Fugitive Slave Act, though he found slavery repugnant. It is why presidents and governors should defend laws even if enacted by majorities of the other party. That’s what executives are supposed to do, that’s the deal we make in agreeing to democratic politics. If a policy or law is so repugnant that an executive cannot in good conscience carry it out, and other legal measures like the veto fail, the honorable thing to do is resign, and work to overturn the law through legislative means. Otherwise the very job definition of an executive requires an execution of the law, and a defense of the law when challenged in court.
To refuse to do so, to abdicate that responsibility, is in effect to say that my political tribe is the only player worthy of a seat at the table. Ryan is right to note that it changes, in an extra-democratic way, the structure of our political system. It goes even deeper than that, however, as it erodes the very trust citizens need to buy into the system in the first place.
Trust in American government has been falling among the American people. Rigging the legislative game such that majorities cannot count on having their duly enacted laws defended by the very same officials who take oaths to defend the laws will only serve to deep the cynicism already spreading like a malignant tumor in the body politic.