Adversarial legal system or not? Undermining the judiciary through rigged social policy

By D.T. Schmidt, ADF Attorney
ADF Alliance Alert
3.5.2008

William Duncan, director of the Marriage Law Foundation, has a commentary on National Review titled: Interpreting Marriage: The California supreme court hears arguments on the meaning of marriage.

Bill adds this important insight regarding the role of the attorney general:

The attorney from the attorney general’s office was hamstrung by the office’s decision not to argue for a robust understanding of marriage, instead arguing only that the court ought to defer to the political process. The attorneys from the Alliance Defense Fund and Liberty Counsel, however, did make strong statements about the meaning of marriage and its consistency with constitutional guarantees.

Bill observes that ADF and Liberty Counsel were fortunate to get some argument time in this litigation before the California Supreme Court. Nevertheless, it is primarily the responsibility of the attorney general to defend a state’s laws — in this case the traditional definition of marriage.

As Chris Stovall observed in yesterday’s backgrounder, “incredibly”, the court of appeals in this litigation ruled that ADF did not have standing to appear in the suit on behalf of the Proposition 22 Legal Defense and Education Fund!

This all raises a much greater problem that is occurring in our nation’s legal systems.

Leftists are prone to use courts to implement their social policies. That is bad enough. But, things really get scary when opposing voices in major policy disputes are restricted from participating in litigation that will have the practical effect of deciding the policy of a jurisdiction.

Litigation in the classic and constitutional sense requires a case and controversy between two parties. Court rulings resolve such controversies between the parties. But, some courts have discovered that their opinions can be used to impose sweeping social changes that practically bind the parties AND an entire jurisdiction in a manner comparable to legislation or even constitutional amendment.

In many of the marriage cases and other cases involving important social decisions, the litigation is brought by a leftist group or groups and it is heard, in some cases, by a left leaning court. That is problematic enough. But, things really get one-sided, when a left leaning attorney general won’t offer a vigorous defense of the laws in question.

If third parties are not allowed to participate fully in the litigation, a one sided result is to be expected. We end up with the specter of major social policy shifts without real debate or discussion involving dissenting voices. This is a grave problem in America’s legal system that needs to be addressed.

For courts to proceed with litigation and appeals all the way to a final decision under such a lack of a robust adversarial process undermines the legitimacy of the final decision and of the judiciary itself. Several decades ago, the US Supreme Court warned of the danger to the integrity of the judiciary of tolerating literally collusive litigation. Upon reading it, it seems clear that most of the same dangers inhere in public interest litigation which is functionally collusive, due to the respondents offering a half-hearted, incoherent, or less than zealous defense of the public policy or act under attack:

Here an important public interest is at stake-the validity of an Act of Congress having far-reaching effects on the public welfare in one of the most critical periods in the history of the country. That interest has been adjudicated in a proceeding in which the plaintiff has had no active participation, over which he has exercised no control, and the expense of which he has not borne. He has been only nominally represented by counsel who was selected by appellee’s counsel and whom he has never seen. Such a suit is collusive because it is not in any real sense adversary. It does not assume the ‘honest and actual antagonistic assertion of rights’ to be adjudicated-a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court. [citations omitted, emphasis added] Whenever in the course of litigation such a defect in the proceedings is brought to the court’s attention, it may set aside any adjudication thus procured and dismiss the cause without entering judgment on the merits. It is the court’s duty to do so where, as here, the public interest has been placed at hazard by the amenities of parties to a suit conducted under the domination of only one of them.

United States v. Johnson, 319 U. S. 302, 305 (1943) (emphasis added).