A week before Citizens United, the Supreme Court settled another interesting case in Hollingsworth v. Perry. It did so on a 5-4 decision, and the liberal dissent gave an interesting window into the thinking of the liberal justices and their disdain for the rule of law.
The matter at issue was whether the federal court of the Northern District of California has acted properly in amending its rules to allow broadcast of the court proceedings in the legal battle over California’s proposition 8, which bans same-sex marriage. Ed Whelan puts the rule change into context, as part of Judge Walker’s aim to turn the proceedings into some kind of show trial. For my part, I have no strong opinion about what the outcome of the trial ought to be, but I am very concerned by the judge’s failure to follow proper procedure.
The court manifestly did not follow proper procedure in amending its rules. Federal law requires that the court “give appropriate public notice and an opportunity for comment” when changing its rules, except when presented by “immediate need”. Legal precedent establishes that “appropriate” notice is no less than thirty days. The court failed to do so:
- It first announced the rule change on December 17 with no advance notice or comment period whatsoever. Some interested parties complained that doing so was illegal.
- On December 31, the court removed the announcement of the rule change, and replaced it with an announcement of a proposed rule change. Public comments were to be submitted by Friday, January 8. (The alert reader will note that 8 is less than 30.) The date was not arbitrary; the trial was due to open the following Monday, January 11.
- On January 4, the court set aside even its abbreviated comment period and announced that the rule change was in effect, using the “immediate need” exception.
- On January 6, the court decided — with no surprise to anyone — that the Prop. 8 case would be broadcast.
After an appeal, the Supreme Court then issued its ruling, which barred the proceedings from being broadcast on the grounds the rule change enabling the broadcast was invalid. It noted that:
Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.
This, however, seems to be the central point of disagreement.
Justice Breyer, in the liberal dissent, raises various technical objections to the ruling, including the remarkable argument that the Supreme Court has no business “micromanag[ing] district court administrative procedures”. (If a lower court violates its procedures, the liberal justices believe that the wronged party has no legal recourse?!) As to the central issue, he says that the court did provide sufficient opportunity for comment, because the possibility of broadcasting the trial had been discussed for months before the rule change was officially proposed. (He makes no effort to defend the lower court’s invocation of “immediate need”.)
In other words, Breyer argues the letter of the law need not be observed because the considerations that motivated the law were addressed in another way. This is a dangerous viewpoint for justices of the nation’s highest court to take.
My department operates on what we call the “reasonable person principle”, which says that we will try to do what a reasonable person would do, rather than tie ourselves down in legalistic rules. In a small, friendly environment, this is a good system. (It may even be a good system in the large, mostly friendly environment my department has now.) However, it is not at all a good system in an adversarial environment.
In an adversarial environment, such as a court or election (or sporting competition), the rules must be set down precisely and enforced punctiliously. This is essential so that all parties can plan strategy and act with the confidence that they know the rules of the game. In a friendly situation it may be beneficial to all to deviate from the rules, but in an adversarial situation any deviation has a winner and a loser.
This goes to the essence of the rule of law. As Friedrich von Hayek put it in The Road to Serfdom:
[The rule of law] means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge.
When the court sets aside its rules in favor of nebulous principles whose application cannot be reliably predicted, we are no longer under the rule of law. Alas, this is the arrangement that four justices of the Supreme Court believe we should adopt. Fortunately, it’s only four.