AP Photo/Jacquelyn Martin
Never has a revolution in moral and legal judgment occurred so quickly. Only 29 years ago, a conservative majority on the Supreme Court dismissed arguments for the most basic constitutional protections for gay people as, "at best, facetious." Now, thanks to a new majority on the Court, we have something barely imaginable just a few years ago: a constitutional right to marriage equality.
Yet there is a potential stain on this victory for equal rights. The four justices dissenting from the Court's historic same-sex marriage decision charge that it is undemocratic. According to Chief Justice John Roberts, the Court is "stealing this issue from the people." A "judicial Putsch," Justice Antonin Scalia declares.
The charge of democratic illegitimacy rolls through the four dissents like thunder, and it may resonate widely. Some notable progressive legal thinkers, such as Mark Tushnet and Jeremy Waldron, have long warned that the liberal reliance on judicial review is inconsistent with democracy. Chief Justice Roberts repeatedly quotes Justice Oliver Wendell Holmes's admonition that the Constitution "is made for people of fundamentally differing views." "In our democratic republic," says Roberts, when a sought-after right is not explicitly listed in the constitutional text and people disagree about its merits, the decision to recognize it "should rest with the people acting through their elected representatives."
Many people may nod in agreement. But the role of the Court in our democracy is more complicated than the Chief Justice lets on. Indeed, the legal authorities that he cites tell a different story. Consider a source that Roberts quotes approvingly for support: John Hart Ely's influential 1980 book Democracy and Distrust.
Ely, like Roberts, worried that unelected judges risk exceeding their proper role in a democracy when they rely on their own moral judgments in overruling the decisions of elected officials. But Ely also recognized that the Constitution frequently uses broadly worded, abstract language whose interpretation requires value judgments. For example, the Constitution prohibits "cruel and unusual punishments" rather than offering a list of prohibited punishments. We must decide which punishments are cruel. The 14th Amendment commands, "No state shall… deny to any person within its jurisdiction the equal protection of the laws." We must decide what kinds of unequal treatment or discrimination are constitutionally unacceptable. The answer, as Ely wrote, cannot be found in the specific terms of the Constitution or in "the ruminations of its writers."
The same is true, Ely noted, of various constitutional provisions protecting individual rights and liberties. Toward the end of the Bill of Rights, the Ninth Amendment refers to other rights "retained by the people" without specifying what they are. The 14th Amendment refers to fundamental "privileges or immunities" that are never listed.
Where can constitutional interpreters look to give meaning to the Constitution's abstract guarantees of equality and liberty? Chief Justice Roberts says judges must find "neutral principles of constitutional law" that are "deeply rooted" in "history and tradition." References to "tradition" and to Blackstone, Lord Coke, Magna Carta, and Cicero abound in the dissenting opinions. But, of course, the mere fact that something has been part of our history or tradition is not a reason for endorsing or preserving it. Traditions speak with multiple and conflicting voices. "Whose tradition counts?" asked Ely. And why should we prefer waning traditions to emerging ones?
To require that rights claims must be "deeply rooted" in "history and tradition" is hardly politically "neutral."
Rather than providing equal protection, that requirement puts new groups such as gay and lesbian people at a distinct disadvantage. And it gives an undue presumption of legitimacy to forms of ill treatment that are longstanding, such as discrimination against sexual minorities.
Justice Scalia offers what seems to be a simpler formula for discerning or denying fundamental rights: "When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases." Original meaning, end of story.
But when the 14th Amendment was ratified, the House and Senate galleries and the public schools of the District of Columbia were segregated on the basis of race. People then deemed acceptable many forms of racial segregation that we know to be shameful. Why should we limit the meaning of the broad principles of liberty and equality set out in the 14th Amendment to the specific applications that the amendment's drafters happened to approve-but in their wisdom chose not to enumerate in law?
In making constitutional judgments or devising interpretative rules, none of us, whether we are citizens or judges, can avoid relying on our own best value judgments about how to understand democracy, liberty, equality, and the claims of minorities. There are no "neutral principles" to adjudicate these basic questions of political morality.
The view that the Courts should generally defer to the elected branches is a defensible position. But the four dissenters on same-sex marriage rights have been highly selective in their willingness to defer to elected officials. They have been anything but deferential with respect to laws seeking to regulate the power of money in politics or the easy availability of guns in society, or laws attempting to undo the dire effects of racial injustice in the only way possible: by taking account of race for remedial purposes. And they have not been politically neutral either.
Ely's account of the role of the courts in a democracy is far better than the ones offered by Roberts and Scalia. Ely argued that we can reconcile judicial review and democracy and give meaning to some of the Constitution's open-ended language by viewing the founding document as striving to realize and perfect representative democracy. Chief Justice Roberts himself describes democracy in terms of rule by "the people," which rightly suggests the whole people engaged in a system of collective self-rule. Democracy so understood is "inclusive," as Justice Ginsburg and others have stressed; it cannot countenance the exclusion or the domination of some by others.
If that sounds a bit "airy-fairy," as Justice Scalia might say, consider that this is precisely what James Madison meant when, in The Federalist Number 10, he described "majority faction" as the leading vice of popular government. Madison insisted that democratic legitimacy depends upon the protection of minorities against majorities who deny their rights or unfairly discount their interests.
Here then, judicial review finds a rationale and mission. As Ely said, "Courts should protect those who can't protect themselves politically" because "the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others, or otherwise to refuse to take their interests into account." The courts can enhance democracy by undertaking "more stringent scrutiny" of legislation that disadvantages minorities long subject to prejudice and discrimination. Ely took specific note of gays and lesbians: "Homosexuals for years have been victims of both 'first-degree prejudice' and subtler forms of exaggerated we-they stereotyping." Why didn't the Chief Justice cite Ely on this point?
Justice Kennedy's analysis in the same-sex marriage case reflects precisely this democracy-reinforcing sensitivity to the interests of a historically "discrete and insular" minority. Kennedy recounts the long history of discrimination and prejudice against gays, and the toll exacted by life in the closet. He is clearly right that continued exclusion from marriage demeans and stigmatizes same-sex couples and their children. And Kennedy, to his great credit, goes beyond Ely by adding a proper appreciation for the equally fundamental importance of individual liberty: a value amply supported by the text and overall design of the Constitution, but which Ely never sufficiently appreciated.
The conservative justices are correct to point to countervailing concerns. The Court's decision will have subtle and possibly profound effects that cannot altogether be predicted now with any confidence. That is true whenever courts or legislatures significantly alter the law. But Kennedy is right nonetheless to insist on heeding those who brought the case: "The petitioners' stories make clear the urgency of the issue." These people have lives to lead, "and for them and their children the childhood years will pass all too soon." The cost of waiting is that some people's lives will be lived under a more enduring shadow of injustice.
Chief Justice Roberts observes that the families seeking marriage equality "make strong arguments rooted in social policy and considerations of fairness." Good for him! But how can he think that a constitution that demands for all citizens the "the equal protection of the laws" is deaf to these families' pleas for fairness?
Conservatives may respond that they agree with much of the argument I have made, but are, like the Chief Justice, skeptical about judges' "insight into moral and philosophical issues." Judges, however, need no special expertise in moral philosophy. What they do need is everyday moral sympathy and judgment of the sort that Justice Kennedy amply displays in his same-sex marriage opinion.
What about the point that Supreme Court justices are unelected and unaccountable? The framers of the Constitution insulated the Supreme Court from direct electoral accountability so that it could render impartial judgments and protect minority rights against political majorities. Life tenure helps insure that the justices need not worry about being thrown out of office for upsetting the powerful. Yet, the Supreme Court is democratically legitimate because the justices are nominated and confirmed by public officials authorized to govern in the name of the people.
Does this mean the Court is unaccountable? By no means: the justices must justify their judgments in reasoned decisions that are published for all the world to pick over and criticize, as we are doing now. The Court is accountable for the quality of its reasoning.
Justice Scalia charges, finally, that the Court is utterly unrepresentative in a way that undermines its ability to be a catalyst for "social transformation." There is not a single Protestant of any denomination on the bench, he observes, and no genuine Westerner or Southwesterner; the justices are all elite lawyers. He might have added that some justices have served for nearly three decades, barring others with fresher and more diverse perspectives. Those are legitimate concerns. Someday we might take them seriously enough to set term limits for justices.
But meanwhile let us celebrate the good sense of Justice Kennedy and his four colleagues, and the constitutional democracy that made this possible.
