My view: Shelby's jurisprudence is lacking

By Mark Butler

For the Deseret News

Published: Wednesday, Jan. 15 2014 3:56 p.m. MST

Without the restraining influence of careful consideration of precedent, and submission of his or her judgment to review prior to enforcement (e.g., judicial stay), every judge indeed becomes a completely independent interpreter of the Constitution.

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In his op-ed, "A judge's purpose is to cast judgment" (Jan. 7), Carson Anderson articulates a clear and accurate understanding of the role of the judiciary in ruling on the constitutionality of laws passed by legislatures or by popular vote. What Anderson is apparently unaware of is the protection against rogue judges and rogue judgments built into judicial procedure — namely, the restraint and constraint of legal precedent.

Careful adherence to legal precedent helps ensure that no judge acts as a maverick, but is carefully restrained within precedent, which in its totality amounts to a carefully and incrementally derived judicial consensus. The credibility of and respect for the judiciary among the public at large, as well as the legal community, is seated in this careful judicial procedure — the very meaning of jurisprudence.

Without the restraining influence of careful consideration of and conformity to precedent, and submission of his or her judgment to peer review prior to enforcement — through the use of judicial stay — every judge indeed becomes a completely independent interpreter of the Constitution, a monarch within his or her own jurisdiction — and can wreak havoc, as District Judge Robert Shelby's behavior has clearly done. Adherence to precedent ensures orderly change. Judicial practice, properly adhered to, prevents judicial tyranny. When a judge operates outside legal precedent it is tantamount to malfeasance, and if recurrent and intractable, arguably should be impeachable.

Shelby's actions were perhaps framed within and conformed to the rhetoric of Supreme Court Justice Anthony Kennedy's recent opining for the majority — and in that Kennedy shares some responsibility for actions taken — but in spite of Kennedy's convoluted logic in striking DOMA, the fact remains that in terms of a legal standard, there was no abrogation of states' powers to define marriage suggested. To wit, Kennedy's words in the Windsor case: "This opinion and its holding are confined to those lawful marriages" in states that have chosen to sanction same-sex marriages.

Under Windsor, marital lawmaking remains reserved to the states. Shelby's actions, operating outside this governing precedent established by the highest court in the land — and ever so recently — followed by his refusal to issue a stay allowing his judgment to be carefully reviewed by that higher court before being enforced as law, could, in the view of some, border on judicial malfeasance.

Finally, it could be viewed as insubordinate chutzpah for such brazen disregard for judicial process to come from a comparatively novice judge as inexperienced as Shelby. To many, Shelby's actions smack far more of politics than responsible judicial review, and erode respect for the judiciary. In a country so divided politically, we need our courts to stand as a bastion of process above reproach and deserving of respect and willing deference.

Yes, Shelby is fulfilling the proper role of a judge in sitting in judgment of the constitutionality of Utah's law, but many assert that he overreaches when he acts outside the considered opinion and review of his peers, and most especially his judicial "superiors" — Supreme Court justices past and present. It is not his place to reason upon the Constitution independently, as if 226 years of careful analysis and interpretation of the Constitution and decision of his peers simply didn't exist.

To some, Shelby's actions manifest an adolescent judicial immaturity in their apparent disregard of the governing body of precedent, and in his subsequent enforcement without staying his actions while he submits himself and his decisions to judicial peer review.

Mark Butler is a graduate of Brigham Young University, where he studied Political Science, emphasizing constitutional law and philosophy. The opinions expressed represent solely the author's personal views.

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