Nearly three-quarters of Spokane voters approved a ballot measure in 2023 that banned camping within a thousand feet of a licensed daycare, park or school.
So when the Washington Supreme Court overturned Proposition 1 in an April 17 decision, some of the initiative’s supporters said the ruling subverted the will of the city's voters.
City Councilmembers Jonathan Bingle and Michael Cathcart issued a statement calling the ruling "an insult to the people of Spokane and our overall democratic process."
Downtown Spokane Partnership President Emilie Cameron said the ruling undermines the local initiative process and disregards the clear decision of the voters.
It's not an uncommon response to court decisions.
Trump administration officials have also referenced the president’s election win as reason to discount rulings against the president’s policies by federal judges.
And abortion rights supporters have often pointed to public support for abortion access when courts haven’t ruled in favor of that right.
Michael Cecil, an assistant law professor at Gonzaga, researches the role of legal principles in a constitutional system and constitutional theory.
He told SPR News the split that can occur between a judiciary and the populace that they serve can put the courts under a unique tension: Should judges take popular opinion into account when interpreting the law? And what happens when officials undermine the judicial branch using public sentiment?
He sat down to talk about it with SPR’s Owen Henderson.
This interview has been edited for length and clarity.
OWEN HENDERSON: Spokane's anti-camping initiative, Prop 1, was overturned by the Washington Supreme Court for exceeding the bounds of a citizen initiative's powers. Can you tell our listeners a little bit more about what that actually means in practice?
MICHAEL CECIL: Sure, so if you read Judge McCloud's opinion for the Washington Supreme Court, what he [sic] ruled on was the basis for which the local initiative was enacted. There's a distinction between local initiatives that are legislative in character and those that are administrative in character.
Now, the lower trial and appellate courts in Washington state had found the local initiative to be of a legislative character. It was adding a provision to an existing camping ordinance in Spokane, but the state Supreme Court found that the initiative was actually enforcing an existing policy, not changing or adding a new policy.
So the legislative versus administrative distinction is the grounds in which the court said, well, a local initiative can only create a new policy, and because this initiative is adding or administering an existing policy, therefore, that exceeds the bounds of the local initiative process as given by the state to the city of Spokane under its local initiative process.
OH: And so then when we get decisions like this that ultimately have an influence on policy, but were not made on policy grounds, oftentimes the parties who disagree with the court's ruling will reference the will of the voters being overturned somehow. In the case of Spokane's Prop 1, about three-fourths of the city had voted for the initiative. Donald Trump won the election and the popular vote, and so that is kind of the grounds on which a lot of people object to these rulings. How does a response like that to a court ruling stack up for you?
MC: There's a bit of a schism, I'll say, between legalese and politics, right? So a lot of decisions must comply with the framework of public law that is given to the locality. Nevertheless, it doesn't satisfy someone when you have a majority of the local population enacting this initiative, which it found to be substantive or legislative in nature, yet we do have to operate within a framework in which the public laws that are handed down and enacted by elected officials or judges as sort of elected officials or appointees do need to be complied with.
So even though I might disagree in substance with Judge McCloud's opinion, I still have great respect for the analysis and the court's institutional prerogative in our federal system.
So what I would say to voters or local residents who are perhaps disheartened or disgruntled with the initiative is to lobby the local city council, to change the city council's camping ordinance or the city of Spokane's camping ordinance, or perhaps consider another local initiative that does create a new policy rather than, as the court would say, administers an existing policy.
So it's always disappointing when an opinion comes down on the side you disagree with. Nevertheless, it is fundamental to the rule of law that we do see opinions we disagree with as worthy of respect and adherence.
We live in a climate where disagreement is seen as insidious or seen as so politically charged that people can't reconcile differences. Politics is fundamentally the idea of coming into compromise with competing factions or people you disagree with, right? No one gets everything they want in a political system. The question is, how do you respond in a just way? So that always becomes the beauty of the political system and living in a constitutional system.
OH: Well, and so let's talk a little bit about that response. An administration gets an unfavorable ruling for one of their policies. They use the excuse of the will of the voters to ignore the court's order. I think an apocryphal quote from Andrew Jackson about ‘If the Chief Justice of the Supreme Court would like to come enforce that ruling, he can choose to do so.’ What recourse does the judicial branch actually have if an executive branch, even at the city level, chooses to ignore a ruling?
MC: A judiciary doesn't have an army, right? It can't enforce the orders using boots on the ground. Now, typically in the federal court system, those that enforce orders that are noncompliant are the U.S. Marshals.
However, the U.S. Marshals function under the Department of Justice, right? So there becomes a bit of a question as to how a recalcitrant president or one that is not willing to adhere to Supreme Court or federal district court orders, how do you respond to that matter? This gets into a bit of a constitutional difficulty.
Typically, the response is to engage the political process. It's impeachment, it's electing another president at the next term, it's working in communities to inculcate principles or values of the rule of law. I know that's not satisfactory, but those are the recourse options that we have available to us.
OH: Speaking about the inculcation of those values into the populace, the court is theoretically apolitical. According to a Gallup poll at the end of last year, trust in the courts has fallen to its lowest level on record. How can the judicial branch put faith back into the courts and put faith into their rulings, even if they're rulings that people disagree with on policy? Or is something like that even the court's job to do?
MC: There's always a tension, and I'll refer to this tension as the counter-majoritarian difficulty. And the idea is you have unelected judges making decisions that affect the population's life, and it goes against the will of the people, right? So there's been a number of recent decisions concerning abortion rights, gun rights, affirmative action, the executive power, so on and so forth that people disagree with.
Your question goes to the faith of the courts. How does an institution re-instill faith in its legitimacy? That's difficult to answer. One thing I would say is courts have a responsibility to the Constitution and to uphold the rule of law.
There's a perspective that maybe the population has in which the court is operating as a political animal within its own institutional prerogatives, right? So people will read the surface of an opinion and feel that perhaps there's a political motivation under the surface.
Judges are people. Judges are not robots. Despite views that the court is, in theory, apolitical, I think there's strong support for the idea that judges have political views on questions, right? They have jurisprudential methods on how they answer difficult constitutional questions.
Reinstalling faith in the judiciary comes to judges being good faith actors in carrying out their duties. Now, if you were to ask the liberal side of the Supreme Court or the conservative side to make it simple, I think all justices would say they're effectuating what they see as their good faith duty.
So it gets down to a question of how are people viewing the court? Well, if the court continues to make decisions that a majority of the population disagrees with, then that population will lose faith in the courts.
The problem there is you don't want the court to become wholly political, right? So judges are people, of course, right? They wake up, they sleep, just like you and I, but they also have to deflect the whimsies of the political current. I'm not suggesting that courts need to be anachronistic or anything like this, but there is a responsibility to see the law as a system of laws. The rule of law also comes down to no one being above the law.
Now, that might be simply a theoretical conversation where you see disparities in wealth and status, governing how laws apply to people, right? So perhaps we don't live under equal application of law, but in principle, the rule of law requires that courts try to see the law as a neutral institution. Does that always happen? No. How do you build faith in the judiciary? It's an open question.
OH: The court has been presented as this apolitical entity. The population seems to view the court as a political entity and judges as political actors. Is it then a question of reframing the conversation around the court to bring the public's perception of the judicial branch closer into alignment with how it functions in practice?
MC: This goes back to the opposite side of the counter-majoritarian difficulty, as I mentioned, is the tyranny of the majority, right? In which political actors or institutions simply carry out the will of the majority.
Now, the problem with that, which is why the counter-majoritarian difficulty arises, is because the courts are the only branch that can defend the fundamental rights when the majority doesn't want those things, right? So for example, if we go back to the U.S. Institution of Slavery or South African Apartheid, a majority of the population wanted the institution of slavery and adhered to the system of apartheid.
Courts are the only institutions that can counteract the will of the majority and reset our society on a new ground, right? So by going from Plessy v. Ferguson, separate but equal, to Brown versus Board, right? Separate but equal is no longer the law of the land. That pushes the society in a new, I would say, moral trajectory.
Now, to your question, you're asking about perhaps viewing the court as a political institution. Well, here's what I would say to that. There are two competing thoughts that must be held, right? So these two competing thoughts are understanding that judges are people and are political actors.
The court is, in my view, a political institution. However, the rule of law and the idea of equality under the law must be independent of the political whimsy, right? So both of those thoughts can exist while not leading to the downfall of an institution, right? It's simply grappling with those ideas. So if you go back to Judge McCloud, it's, well, I disagree with Judge McCloud's opinion, right? However, I respect the opinion because I do respect the rule of law, right? So that's what I would suggest is the functioning of ourselves in a society that is fundamentally at odds with itself.
We either are a country or we're not a country. That requires people grappling with things they disagree with, adhering to things they disagree with, but also taking one step back and thinking about notions of justice and equality for everybody.
OH: Professor Cecil, thanks so much for your time.
MC: Thank you, Owen.
