Cain�s Paper: Evaluate the Role of the State Judiciary in

							Cain’s Paper: Evaluate the Role of the State Judiciary in Regards to Proposition 209

Aspect: The interaction between state and federal courts
(While there is considerable repetition and overlap on many issues, this is necessary to
demonstrate the complexity of the decision making process)
         A major aspect of the state judiciary’s role regarding the implementation of
Proposition 209 is the plaintiff’s avoidance of filing in state court with a preference for
filing in federal court. Proposition 209 is a state constitutional amendment and there
would be an assumption that the state courts should have jurisdiction over the matter.
Instead of challenging 209’s implementation in state courts, many of the cases filed
against Proposition 209 have been filed in federal district courts. Why is there a tendency
to file in federal court instead of the state?

Theory 1: State courts have little power over constitutional amendments, as opposed to
federal courts

Theory 2: Federal courts are more willing to overrule propositions over constitutional
conflicts than state courts because they do not have to show deference to the people.

Theory 3: Unlike state judges, federal judges are more willing to overrule because they
are not vulnerable to popular reconfirmations.

Theory 1: State courts have little power over constitutional amendments, as opposed to
federal courts
        One major aspect of the grappling between state and federal courts is the
supremacy clause. Under our federalist government, we have a two-tier government
system with a unique power structure. Using a strict constitutionalist framework of
analysis, the federal government is recognized as the entity to protect all citizens of their
rights which are delegated through the Constitution. Meanwhile, the states are
recognized as the government entities with jurisdiction over local matters that are not
enumerated under the Constititution. Their power are reserved to them under the Ninth
and Tenth Amendments of the Constitution (INSERT FOOTNOTES). However, this
does not mean that states have ultimate control over areas which fall under their
jurisdiction. The federal government enjoys oversight over all state actions through
Article VI of the US Constitution, otherwise known as the supremacy clause. Should any
state actions violate federal laws, the federal courts have the ability to overrule the state’s
action.
        All of this becomes relevant when analyzing why state courts are ignored for
federal litigation. Proposition 209 was an amendment on the California Constitution. As
a result, state courts have no legal reason for overruling its implementation because state
courts cannot challenge the constitutionality of Article I, section 31 when the proposition
IS a part of the state constitution. The only means by which this proposition could be
overturned is through either another popular referendum or if it is found to be in violation
of federal law.
        As a result, many of the lawsuits to overrule much of Proposition 209 were filed
in federal courts. Federal courts have the supremacy clause to intervene in state
constitutions if violations against the Constitution or federal laws are found. This theory
does not necessarily reflect upon the disposition of the courts (which we’ll explore later)
but more upon the structure of our government system.

Theory 2: Federal courts are more willing to overrule propositions over constitutional
conflicts than state courts because they do not have to show deference to the people.

         The federalist framework allows for two sets of courts with different sets of
priorities and authority. Federal courts derive their authority from the Constitution and
federal rules and regulations. Meanwhile, state courts derive their authority from the
state constitution and their state rules and regulations. There are many instances where
this can lead to conflict between federal laws and the state.
         The California state constitution explicitly states that all political power is
inherent to the people and that they have the right to change it when necessary (footnote,
article II). They are empowered to do this through initiative and referendum. Because of
this, state courts tend to show deference to referendums because it reflects popular will.
Studies have shown that state courts not only attempt to keep intact as much of a passed
proposition as possible, they even amend minor constitutional errors (Miller). State
courts recognize propositions as being the will of the voter and will do all that is
permissible to keep the intent of the proposition intact. Seldom will state judges attempt
to go beyond the intent of the writers of the initiative unless it violates federal law. State
activism is manifested through fulfilling popular will, rather than opposing it.
Meanwhile, the argument is that federal courts do not adhere to these standards, being a
federal entity, and they are more willing to take on initiatives if they violate the law.
According to Holman and Stern, over 78% of all court challenges of California
propositions have been through federal courts (Holman, Stern). Plaintiffs have found
federal constitutional challenges to be far more hospitable than state courts. After all,
there is no “popular will” clause in the US Constitution.
         Proposition 209 is no exception to this growing tendency to attack propositions
through federal constitutional issues. In Coalition for Economic Equity v Wilson,
charges were brought in federal court over Proposition 209. The concern was that Article
I, section 31, violated the Equal Protection Clause of the 14th Amendment. This
landmark case identified several issues which characterize the distinct differences and
concerns between state and federal courts. Judge Henderson argues that “the issue is not
whether one judge can thwart the will of the people” but whether the proposition
complies with the Constitution and the Bill of Rights. Under a state court, the judge
would have to consider giving deference to the voters. However, this isn’t necessarily the
case for federal judges. Judge Henderson’s concern was for the insular minorities which
may be adversely affected if Article I, section 31, were implemented.
         Though federal judges have the ability to block the will of California voters with
the stroke of the pen, this does not necessarily mean that it stays permanent. The 9th
Circuit Court of Appeals overruled Judge Henderson, citing his flawed reasoning for an
injunction against implementing Proposition 209. More importantly, the 9th Circuit’s
decision highlighted the biggest concerns of activism which face the conflict between
state and federal courts. The court wonders about the activism of a federal court for it “to
tell the people of California that their one-day-old, never-applied-law violates the
Constitution” (6/20). The circuit questions the value of attacking propositions federally
when the state hasn’t even challenged it yet. In this sense, the 9th circuit is granting
deference to the state system and allowing them to figure things out before they get
involved. Furthermore, the 9th Circuit found it disturbing in which “A system which
permits one judge to block with the stroke of a pen what 4,736,180 state residents voted
to enact as law tests the integrity of our constitutional democracy” (Footnote 6/20). One
judge’s activism, which was heavily criticized upon appeal, can thwart the will of a state.
However, do federal judges necessarily get involved in proposition such as 209? Much
of this depends on the next theory.

Theory 3: Unlike state judges, federal judges are more willing to overrule because they
are not vulnerable to popular reconfirmations.

        Chief Justice Rose Bird earned a special chapter in the history of the California
court system. She used every legal loophole and technicality available to stop capital
punishment cases before her. Her personal opposition to the death penalty was not
hidden in her decisions, even though the state was in favor of the death penalty.
However, her fatal flaw was that she had to be reconfirmed every 12 years. In 1986,
Californians targeted her for being too soft on the death penalty. Her re-confirmation
was opposed by a 2-1 margin. In the end, her personal politics condemned her political
career.
        While many California judges are easily reconfirmed in elections, the Rose Bird
incident is a warning to anyone who fights the political winds of California. Given this, it
can be argued that a judge’s personal bias will not blatantly manifest itself if popular will
holds a different opinion on the issue. After all, they could be the next Rose Bird.
However, this does not apply to federal judges. Since federal judges have lifetime terms
and can only be removed through Senate impeachment, they are relatively immune to
popular resentment. As a result, federal judges can have biases which can prove
favorable or detrimental to a proposition. Lawyers may be more inclined to actively
search for federal judges who would ignore popular will and overrule the populace
because the consequences of their actions are minimal. Given all these things, it would
appear that federal judges tend to overrule state propositions more often because lawyers
will actively search for courts who would tend to give rulings in their favor.
        In the case of Proposition 209, the ACLU filed an injunction in San Francisco
County. This was a calculated gamble by the ACLU because there was a good chance in
getting a liberal judge to hear their case if they filed there. Hopefully, they would get a
sympathizer who would accept the injunction and delay the implementation of
Proposition 209. As it turned out, Judge Henderson was as good as it gets for them.
Judge Henderson previously worked as a civil rights attorney and was the dean in charge
of minority admissions in Stanford University. He was extremely sympathetic to the
plaintiff’s case and issued an injunction on Proposition 209. His opinion was a long
defense of the plaintiff and he distorted many case opinions to fit his arguments. In the
end, the 9th Circuit would overturn his decision and cite that “the district judge relies on
an erroneous legal premise, the decision operates to thwart the will of the people in the
most literal sense” (6/20).
        The case of the Coalition (insert footnote) v Californians Against Discrimination
And Preferences (CADAP) is the best example of how opponents of Proposition 209
attempt to circumvent the proposition by using federal courts over state courts. The
lawyers for the Coalition wanted to maximize their chances of halting the implementation
of Proposition 209. State options were not as promising because of the deference state
courts give to popular will through initiatives. However, federal courts do not have the
same obligations and pressures that California judges face. As a result, lawyers filed an
injunction in districts which had the most promise of accepting an injunction. In this
case, the Coalition’s gamble paid off when Judge Henderson halted the implementation
of 209. Furthermore, his opinion was a long defense of why 209 was not permissible. In
the end, this ended up as only being a delay tactic as the 9th Circuit Court of Appeals
overruled Judge Henderson. However, damage was done. In the words of the 9th Circuit,
“A system which permits one judge to block with the stroke of a pen what 4,736,180 state
residents voted to enact as law tests the integrity of our constitutional democracy.”
Activism through the federal route might not lead to permanent results, but nonetheless, it
can have an effect.