>> Thursday, November 12, 2009

I have an article up on TAP noting that the referendum overturning same-sex marriage rights should once and for all make clear that "the idea that changes in support of gay and lesbian rights can preempt controversy and organized opposition as long as the courts stay out of it is a pernicious myth."

The remaining puzzle is why an argument -- that courts generate a unique backlash -- with so little theoretical or empirical basis has so much appeal to a group of scholars and pundits on the ostensible left or center-left. It's clear that in many cases pundits and scholars are projecting a democratic theory onto a public that doesn't share it. But what is that theory, exactly? As I briefly mention in the piece, decisions requiring marriage equality would seem at least consistent with any normatively attractive theory of judicial review -- if legally plausible arguments against the exclusion of an unpopular minority from fundamental rights aren't a defensible basis for the exercise of judicial review, what is? (If these arguments sprung from an opposition to judicial review, period, this would be more credible, but they rarely do.) To me, the patron saint of the courts-should-use-judicial-restraint-except-when-they-shouldn't school is Felix Frankfurter. Mark Tushnet's take on Frankfurter in A Court Divided is (if you don't count the famous Robert Cover baseball quiz) definitive:

For the next two decades, including the Term Rehnquist worked for Jackson, the Court remained divided. The divison was exacerbated by deep personal conflicts. Felix Frankfurter, a former law professor who thought of himself as a sophisticated constitutional theorist, basically couldn't develop a decent theory to help him decide what to do, but he knew he despised William O. Douglas, the quintessential activist. (17)
And I think this pretty much applies to most of the scholars and pundits who become instant experts in Massachusetts or Iowa equal protection law to denounce "judicial activism" -- it's a way of making it seem that you have a sophisticated view of judicial review and democracy. Not that you have such a view, but that you think it would be neat to acquire one. And the landmark precedents for such views have to be Frankfurter's arrogance-cloaked-in-humility dissents in W. Virginia v. Barnette and Baker v. Carr. Sure, the legal arguments range from unconvincing (the 1st Amendment has nothing to say about mandatory state loyalty oaths) to embarrassingly specious (the only remedy for being illegally unrepresented in the legislature is to petition your non-existent political representatives.) No, there really is no coherent reason why judicial restraint is demanded in these cases but, say, the reverse-incorporation argument in Bolling v. Sharpe is perfectly OK. But the most important thing is to occasionally engage in some mock-tortured moral handwringing to show that you're better than the dirty legal hippies of the day, and if that means that some Jehovah's Witnesses get beaten up and expelled or some African-Americans have no effective legislative representation or many same-sex couples are denied the right to marry, well we have to get out priorities straight.


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