Legal Commentary

Sorry; I could not resist.

On Tuesday, the Kansas Supreme Court struck down the state's Funeral Privacy Act, which prohibited picketing and other demonstrations within 150 feet of the entrance to a funeral during the times surrounding services. The law was an explicit attempt to stop the Kansas-based Westboro Baptist Church, which has gained notoriety by picketing funerals of slain soldiers (and of every other high-profile civilian death, given a stated intent to protest the funeral of the slain UNC student president).

This case was all about procedure. The Kansas statute provided that the funeral-protest restrictions would not become operative and enforceable unless and until a federal district court or the Kansas Supreme Court upheld their constitutionality. The law also directed the attorney general to file a lawsuit challenging the constitutionality of those provisions upon the law's passage. Instead, the AG brought an original quo warranto action in the supreme court, arguing that the law violated separation of powers by forcing him, as a member of the executive branch, to initiate a lawsuit that he believed would seek a non-meritorious remedy, namely the impermissible advisory opinion that would result from any such lawsuit.

The court agreed that the required lawsuit in state or federal court would require an advisory opinion, in violation of both the Kansas Constitution and the U.S. Constitution (where the no-advisory-opinions principle is most famously stated in Muskrat v. United States (1911), hence the bad title of the post). Because the funeral-protest provisions never became operative and enforceable, there could be no live judicial case or controversy. No one will have standing because no one can suffer injury-in-fact from an inoperative law; no dispute can be ripe because there is no present controversy if the law is not enforceable. And a court could not render a constitutional determination as part of an enforcement action, since the law is not yet enforceable. The Kansas legislature simply was asking for a court to sign-off on the law's constitutionality before it took effect, rather than making a firm determination for itself and acting on that conclusion by enacting (or declining to enact) an effective, operative, and enforceable law. That is the very model of an advisory opinion.

As a believer in strong constitutional judicial review (which is not judicial activism, a term that has no meaning), I always have been troubled by the argument that judicial review makes legislatures lazy, by absolving them of the obligation to take seriously the institutional obligation to decide for themselves about the constitutionality of their enactments. The result, the argument goes, is we get a lot more bad or likely unconstitutional laws; legislators do not look seriously at constitutionality, knowing that the courts will bale them out if what they enact runs afoul of the Constitution. There may be something to that argument. But I actually think the better explanation (at least with respect to legislation on certain hot-button social issues such as abortion, religion, and some types of speech) is that legislators simply pursue their preferred policy goals, however against the present constitutional landscape, with the hope that 1) the doctrine will change and the law upheld or 2) if the law is struck down, legislators simply can blame "liberal activist judges run amok" for defying the will of the people. Either way, the legislator wins--scoring either policy or political points.

Kansas tried to bring the courts into the lawmaking loop. The theory likely was something along the lines of "if any law we pass is going to have to clear judicial scrutiny first anyway, we may as well make that determination part of the effective date of the legislation." But that is not what the courts are there for, at least under the federal and Kansas constitutions. This process also allows the legislators to move up their judges-gone-wild argument. Instead of "look, we passed this law but the judges struck it down," the line now is "we would love to pass this law but we were hamstrung by the judicial-activist refusal to let it become enforceable."

Ultimately, the legislature ought to face the full costs of passing constitutionally dubious legislation (such as a a restriction on core political speech, however odious its content) by bringing that legislation into full existence and dealing with the full cost and burden of the resulting judicial challenge. Perhaps the legislature will win the rhetorical battle against the activist judges. Or perhaps the public will become fed up with elected officials wasting public time and resources deliberately setting up such battles (although admittedly the public has shown little interest in these conflicts). Either way, the legislative-judicial conflict should be a full part of the "conversation" among the courts, the popular branches, and the public.