Friday, July 3, 2015

The same-sex marriage case and the role of the Supreme Court in a democracy

Justice Kennedy’s opinion for the Court is not, everyone would agree, a classic of doctrinal precision. But I’m not as disturbed about that as some people may be.

Brown v. Board of Education, after all, was not a classic of precise legal reasoning either. One leading scholar of the day felt the case for desegregation hadn’t been made; another wrote an article offering the opinion that he felt the Court should have written. It’s striking, even today, that the Brown Court managed to avoid ever saying what everyone knew, namely that the reason segregated schools existed in many states was that whites ran those states and viewed blacks as inferior. Nevertheless, Brown remains a key to modern American constitutional law.

Obergefell is squarely in the tradition of Brown. It discerns a constitutional right in words that had not been thought to contain this guarantee. Clearly the men (women could not vote at the time) who adopted the Fourteenth Amendment did not understand it to guarantee same-sex marriage; and it seems unlikely (at any rate the Brown court evidently thought it unlikely) that the adopters of that amendment understood it to forbid the segregation of schools either. In each case, the Court concluded that it could articulate the meaning of American values in ways that many or most Americans, at least in referenda and legislative votes, had not yet done.

Today’s conservative justices believe themselves opposed to the courts’ playing this role as the conscience of the country. Whether this is self-delusion on their part is an interesting question, but not one I want to take on today. (Incidentally, an earlier generation of conservatives, the ones who wrote decisions early in the twentieth century upholding the “liberty of contract” against such outrages as laws regulating the maximum number of hours in a workday, had no such hesitations.) But how can this current reluctance be squared with Brown? Perhaps the easiest way is simply to accept Brown as already decided, and uphold its result while “forgetting” the jurisprudential approach that led to that result. But Obergefell is a big problem for this strategy, because it just happened. There is now simply no way to deny that the Court does, even today, play this role.

It’s of course still possible to deny that the Court should do this, in particular on the ground that when nine justices, from elite backgrounds, shift the meaning of the constitution they are depriving the people of the country of their right of democratic self-governance. There are a lot of ways to respond to this charge, but perhaps the strongest is this point, articulated many years ago in a book review by Jerry Lynch, then a young faculty member at Columbia and now a judge of the U.S. Court of Appeals for the Second Circuit: this supposedly undemocratic institution is in fact an integral part of our particular democracy.

Or to put the point as Justice Kennedy does: 
[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. (Obergefell, majority opinion at 7.)
The Supreme Court in Obergefell spoke to the deep values of the American people. To some extent, it spoke for the many, many people who have rapidly come to approve of same-sex marriage. To some extent, it spoke to others who had not yet reached the same conclusion. To some extent, it constrained still others who may never agree. All of this was true in Brown as well.

It’s certainly possible for the Supreme Court to overplay this hand. I doubt that it did so here; the Court’s decision instead feels to me like part of a broad and unstoppable wave of change and justice. But in any case, we live in a democracy in which some of the fundamental decisions, decisions that determine the reach of our constitutional liberties, are made by nine unelected people. We just do.


  1. We just do: but only when the decisions can be linked to constitutional text.

  2. I'm inclined to agree with this comment, but with a big caveat: the text is so imprecise that a great, great deal can be linked with it.