Judges and the Social Hot-Button

Judges and the Social Hot-Button


In the wake of the Iowa Supreme Court decision last week, combined with the subsequent Vermont legislative passage of same-sex marriage, there’s been a lot of talk, even amongst more conservative pro-same-sex marriage folks, about judicial activism and whether it’s the appropriate role of the courts to get involved in deciding social hot-button issues.

There has also, to be sure, been a fair amount of talk about whether same-sex marriage is an appropriate issue for application of equal protection doctrines, and there has even been some talk about the propriety of equal protection law in the first place. In reality, though, concerns about the propriety of equal protection law have very little legal underpinning and aren’t worth much discussion; meanwhile, it’s increasingly difficult to see how a court could find that equal protection law does not apply to same-sex marriage.

Far more interesting to me, though, is the question as to whether it is appropriate for the courts to get involved at all with hot-button social issues where they may end up overturning popular legislation. As someone who deals with the courts almost daily, I’ve long thought this question to be nothing more than a red herring – otherwise, what is the point of having an independent judiciary in the first place?

But one of my co-bloggers at the League of Ordinary Gentlemen, over the last several days, has helped me understand that there is sometimes more to that argument than meets the eye, although I continue to think that it is based on a misunderstanding of how our courts work. The result was a unique conversation that is memorialized here, and which helps clear up some misperceptions on both sides of the debate.

This section is, I think, particularly illuminating:

Will: As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Mark: The question I have, though, is how the courts can reasonably consider issues of political capital. They don’t get to decide when a plaintiff brings a case, and, as in Iowa, if a trial court rules for that plaintiff, then the higher court has no option – either they take the case and decide it on the substantive legal arguments, or they decline the case and let the lower court’s decision stand. Once they take the case, they simply have no choice but to apply existing law to those facts, whether or not they like the result. That’s not to say there aren’t exceptions to this – but the far bigger danger is often when courts do account for their political capital.

The whole debate is here.

One thing that does not get emphasized enough, though, in debates about judicial activism is that often times the idea of originalism is the truly “results-oriented” jurisprudence, while controversial or unpopular decisions decried as “activist” are nothing more than good faith applications of existing law. I say this because originalist critiques often insist that constitutional language should be “interpreted” to exclude laws and practices that existed when the constitutional provision was passed and were thus clearly not “intended” to be made unconstitutional by the provision. Such an “interpretation” is the very definition of activism, though, because it insists judges read into a constitutional provision limiting language that simply does not appear.

  • Chad

    Doesn’t “Judicial Activism” mean “The Conservatives Lost?” If you just replace the first phrase with the second, most of the whining of the last 10 years finally makes sense.

    And for the record, this is the same whining your forebears engaged in when women and blacks wanted to be treated equally. Most of you righties have the good sense to be embarrassed by their behavior, just as your grandchildren will be embarrassed by yours.

    It’s a terrible shame for those poor people who have their constitutional rights curtailed in the meantime, though.

  • http://www.ordinary-gentlemen.com Mark Thompson

    Wow. Did you even attempt to read this post? Seeing as I : 1. Am a passionate supporter of same-sex marriage rights, about which I’ve been more than vocal; 2. Fully support the idea that the Iowa Supreme Court (and every other court that’s ruled in favor of SSM) did exactly the right thing; and 3. Think complaints about judicial activism usually fail to understand the way the courts work, I’d say your comment completely misses my point.

    Furthermore, I would point out that my sparring partner in this is a passionate supporter of SSM as well, but simply thinks that the courts should stay out of it because it is too controversial. The point of my argument is that the courts have very little choice in the matter but to apply the law as it exists to the facts; given settled equal protection doctrine (with which I clearly agree, if you took the time to read my links), applying existing law inexorably leads to the conclusion that SSM should be legal.

  • shawn

    If the courts are deciding based on their best interpretation of the law, then that’s just about the best they can do. They’re not threatening their own independence, they’re just doing their job.

    It’s the people who wanted the laws that aren’t legal/constitutional who claim that the court’s ruling was politically motivated that are the ones threatening the judiciary’s independence. And they’re purposely doing it to try and get their way. That’s a very short-sighted thing to do.

  • http://theforvm.org Blue Neponset

    Brown vs. The Board of Education was controversial too. Does your friend think SCOTUS should have waited to rule on that case?

    I think your friend’s idea “that the courts should stay out of it because it is too controversial” is ridiculous. If SCOTUS were to go too far the people can amend the constitution. There are checks on each branch of the gov’t.

    Also, Bush v. Gore did more to harm the “political capital” of the courts than any gay marriage decision will ever do. Yet, somehow that didn’t affect SCOTUS’s ability to do its job.

  • kranky kritter

    Ultimately I find your friend’s argument for pragmatism uncompelling. To suggest that the court should be “pragmatic” in picking its battles is IMO to suggest it ought to abdicate its defined role. I think the courts work better when they make a good faith attempt to apply the laws as they are written and understood. And variance in understanding means that mileage is gonna vary. As an editor, I know that the extent of plain meaning is far more limited than we’d like.

    As far as activism goes, I think it is generally to be avoided, but may be called for in extraordinary circumstances. But even when it is called for and the call is answered, there always seem to be difficult longer-term ramifications, unintended side effects, and so on.

    For example, even if one supports provision of legal abortion, whether wholeheartedly or provisionally, one can see how the amorphous right to privacy that came to be as a result leaves us poorly served. Had some judge not declared this to exist in the penumbra of a spirit, we might have been forced to tackle the issue much more directly. Then it would exist clearly in the bright light, and we would all better understand its extent.

    As is, I think a reasonable person would understand that its extent is no better than, well, alleged. And we are only a click or two away from some later team of judges saying it’s just not there, no matter how much we wish and think it should be.

    Chad above is just another example of someone either incapable of or uninterested in digesting the underlying ideas. If you are a partisan and you don’t like someone’s argument or can’t be bothered to understand it, you just throw someone under the bus based on a grotesque stereotype.

    I think most sensible folks have some appreciation of why its fundamentally better for everyone in the long run when things like SSM rights are extended by a legislature instead of by a court. Of course in the real world most people are far more ends oriented than means oriented. In other words, people prefer to get what they want by baroque methods than to simply accept defeat via the classical approach.

    For example, the way in which SSM rights were established in MA, where I live, was a perfect case study. The state found this right in a non-specific sentence in the state constitution which everyone sane knows could not possibly have been intended to apply to that to which it was being applied. So our court decided to say that it HAD TO apply, largely because it was not specific.

    The best way I can describe my opinion of such judicial actions is to say that I understand that sometimes defensible and questionable mean the same thing.

    When state residents decided to respond by using the referendum process to revise the constitution to state the people’s will, the legislature used various legislative process mechanisms to prevent the question from reaching the ballot, despite the fact that MANY residents on both sides of the issue were eager to be heard directly.

    That describes to me about the most unsatisfactory way possible to bring about something that I nevertheless viewed to be a desirable outcome. What troubles me most is that in the end, the people’s elected representatives apparently decided that they had been elected to THWART the will of the people who elected them. Frankly, that’s perverse. But it’s what happens in a state dominated by one party for at least my entire 40+ year life.

    That said, lingering concerns about the bastardized process aside, I don’t hear many of my fellow residents expressing much dismay outside of from older, less educated, narrow-minded folks. And they don’t REALLY care about process. They just fear homosexuality. A generation from now, few folks will trouble themselves with it.

  • Claudia

    I believe it is not the role of the courts to decide social hot-button issues. If courts do not get involved then the power to make these decisions would flow to the elected state representatives. In most states, aside from Iowa, courts have made decisions on same-sex marriages which have caused a tremendous amount of controversy. This conflict could be evolving because Judges are appointed, not elected. Judges are not necessarily representing the interest of the people, whereas elected state representatives, who have the approval of more then 50% of their district, speak for the majority. Therefore, state representatives are the better candidates to make decisions concerning social hot-button issues. Does anyone agree with this insight into state representatives? If not, why would judges be more suited to make decisions on these controversial issues?

  • http://www.ordinary-gentlemen.com Mark Thompson


    Thank you – that’s a really excellent comment.


    Elected judges are simply a terrible idea. The responsibility of the judiciary is to make sure that the law, and especially the federal and state constitutions, is enforced uniformly and reliably. “Popular” justice is nothing short of mob rule and results in situations where processes are not respected, verdicts are unreliable, and the law is increasingly inconsistent. The idea that unelected judges nonetheless have some sort of a broad and conspiratorial political agenda is simply unfounded and denotes a lack of familiarity with how the judicial system actually works. Additionally, as I try to explain in the linked discussion, judges often have very little choice but to get involved in social issues – they don’t get to decide, at the trial court level, who brings a case and for what reason.

  • Trescml

    The idea that state representatives are naturally better able to address hot button social issues has two basic flaws. The first is that just because some one is elected does not mean that majority who voted for that person agreed with every position the person has. This is particularly true for independent voters. Now in theory a state rep. could know each individual issue and vote based on what her/his district would want, but in general social issues votes are more based on party lines. Also, the majority of people don’t base their votes on social issues.

    The 2nd flaw in the argument was mentioned above the cases like Brown vs Board of Education where there are states where the people would have loved to keep “separate but equal”. Just because a state would want to keep that type of policy doesn’t mean it is right.

    I think the courts in general try to apply the law and do take public feelings into account (we would not have this same gay marriage discussion 60 years ago). There are roles for both state government, the federal government and courts to play on determining the direction for these issues.

  • kranky kritter

    I don’t like the ideas of elected judges either. For one thing, judges are often called upon to protect the rights of minority groups from bullying by the majority. Also, they are supposed to make decisions based on what the law says without regard to popular opinion. Maybe they fail to meet that standard all the time, but being elected creates a substantial direct conflict of interest. That said, perhaps lifetime appointment ought to be replaced by renewable 12 year terms or something.

    Let’s face it, when it comes to civil rights, it seems to have been shown over and over that leaving their extent and application to the whims of the popular majority and resulting public opinion has not bathed the insight of the general public in glory.

    I don’t think anyone has said that judges are necessarily more suited or better suited to deciding social issues. Rather, it’s the case that when a social issue becomes a legal issue, the court has a responsibility to decide that legal issue if it is brought before that court.

    Notice that this does NOT mean that such matters must always be decided in court just because someone has brought a case. They could be resolved by a responsible attentive legislature that was used to acting in response to an attentive electorate. But as we know, that’s not the way it works out. The people and the legislature generally only decide to get involved AFTER some court makes an unpopular decision.

    It would be nice if social issues and legal issues did not overlap or could somehow be made not to overlap, but I see no way to make that to happen in our representatve deomcracy of multiple branches with checks and balances.

    Americans have a government that provides each of us with multiple avenues of recourse when we are dissatisfied with our affairs. Sometimes it feels like a feature, and sometimes it feels like a bug.

  • http://maroonedinamerica.blogspot.com Justin Case

    I just wrote about this on my own blog. So I went looking to see what other have had to say about this issue. I wound up here.

    The problem over this entire debate seems to be based on the fact that both sides are talking about two different issues. So I say it’s time for a Divorce — divorce the two subjects intro two different debates. LEGAL Marriage is one debate. SOCIAL Marriage is another. But people keep trying to debate both at the same time.

    LEGAL Marriage should be a right of ALL citizens in the U.S. The fact that we are still talking about this, in this day and age, is ridiculous. EVERYONE should be entitled to the same LEGAL rights are one another. Period.

    The definition of marriage from a SOCIAL perspective is a different subject. If a church chooses not to marry a same sex couple, fine. They can go to another church. Or if all else fails, go to the justice of the peace or local court house. Because, sure, the social organizations could choose morally not to perform a marriage, but they should not be able to legally prevent it either.

    I doubt if a Catholic could get married in a synagogue by a rabbi. That is the SOCIAL right of the Synagogue to refuse. But they can not stop the Catholic from going to a group who would marry them… or at the very least, the courthouse, to get legally married.

    *For the record, I’m straight and married.
    Sorry ladies :-)