In adjudicating such cases, judges are supposed to prevent a tyranny of the majority from trampling the constitutional rights of minorities. As they did in the Loving vs. Virginia case overturning bans on interracial marriage, justices are supposed to uphold the Constitution even if public opinion doesn’t support them doing so. That can only happen if judges are ruling exclusively on the constitutionality of discrimination - and not on whether such discrimination happens to be supported by the majority of citizens.I, too think that the position of the Court on social issues seems to be not to rock the boat. They have accepted the conventional wisdom that the sweeping nature of Roe v. Wade made the anti-abortion backlash inevitable, and that it is better to let the public gradually shift on the issue. Luckily for the gay marriage crowd, the popular mood seems to be rapidly changing. It will be interesting how many states will have to be left with gay marriage bans before the Court finally rules that it is a fundamental right. I would guess it will be around 20. Wait, how many states went for Romney?
Sotomayor and her fellow justices seem to be saying the opposite—they seem to be making the radical claim that the public might not be ready for a sweeping ruling on same-sex marriage bans. That is a radical notion because those judges are insinuating that constitutional questions about equal protection should be less important than subjective questions about the current public mood.
But that’s the thing—while politics and the public shift, the right to equal protection under the law is supposed to be immutable. That right is either being protected or being violated. Indeed, the whole genius of the Founders’ creation of an independent judiciary is the recognition of that fundamental truth—and the corollary recognition that there is never a “right time” or a “wrong time” to uphold the Constitution.
Sunday, March 31, 2013
Moral Cowardice At Supreme Court?
David Sirota sees a theory of ruling to match the public will as opposed to upholding the Constitution in the questioning on gay marriage this week: