What to expect from the 9th Circuit

Lawrence C. Levine is a professor of law at the University of the Pacific’s McGeorge School of Law. He spoke with SN&R about the upcoming 9th U.S. Circuit Court of Appeals hearing in Perry v. Schwarzenegger.

What possible outcomes does this hearing have?

The panel could uphold Judge Vaughn Walker’s decision, overturn it, or send the case back to him, but it’s hard to imagine what that would be. But whatever happens, the other side is going to appeal, first to the 9th Circuit and then almost certainly to the Supreme Court.

Are most cases involving constitutional issues appealed? Do you expect this decision to be appealed?

Oh yes. Either side can and will appeal this.

There’s been a lot of outcry about “letting the people vote” on civil-rights issues for gay people, and the Iowa Supreme Court justices were recently removed from the bench by voters in retaliation for their decision on marriage equality. Any comment on the possibility of intimidating the federal judiciary?

The history has been—and many of us have long accepted—that it is the role of the court to be sometimes anti-majoritarian and to protect minorities from the tyranny of the majority. History supports the idea that we don’t put the rights of disadvantaged groups up to a popular vote, because if we did, there’d be a long history of minority groups losing.

In 1948, when California eliminated the ban on interracial marriage, the overwhelming sentiment of the majority of people was that people of different races shouldn’t be allowed to be married. The court often nudges us in the direction of equality, and then we look with back with some embarrassment later on.

But they did impeach Rose Bird over capital punishment in California …

There were two others—Rose Bird, [Joseph] Grodin and [Cruz] Reynoso—it was a bloodbath. But the federal judiciary cannot be removed. They are never put up for election and can only be removed through impeachment for substantial misdeeds. The federal judiciary has the ability to really be braver—although most state judges feel that their job is to do the right thing, no matter what the consequences.

Compiled from Kel’s Hot Flash.