The most important and lasting civil rights-related changes in the U.S. have come through either direct votes of the people, or through their representatives in state legislatures or the U.S. Congress. Examples include the Civil War-era constitutional amendments and Civil Rights Act of 1871, women’s sufferage (19th amendment), Voting Rights Act of 1965, etc.
What offends me as an American and a voter is when unelected judges short-circuit democracy with rulings like the one in California back in May. When judges legislate from the bench we are as likely to get a Dred Scott-like decision as we are a Brown v. Board of Education one. Anything that has to go through the scrutiny of a public vote or legislative action is more likely to stand the test of time.
I trust the people and our elected representatives far more than I trust our Supreme Court to make good law and public policy.
For me, legislating from the bench occurs where justices move beyond interpretation of the law by putting their finger into the air of public opinion to test which way the winds of popular culture are blowing. One of the worst recent examples of this was the US Supreme Court‘s Kelo v. City of New London decision involving the use of eminent domain to transfer land from one private owner to another for economic development purposes. On the US Supreme Court, the main finger-wavers seem to be Justices Souter, Kennedy, and Ginsberg.
The Kelo decision went far beyond interpretation of law into setting public policy better left to state legislatures. The resulting public outcry led to a rash of state constitutional amendments and new laws that effectively repudiated the Kelo decision. Rather than ease redevelopment in older cities (a public policy choice and the obvious intent of the court majority), Kelo had the effect of actually making it far more difficult and expensive for older communities to redevelop problem areas.
The success of Proposition 8 shows that the California Supreme Court overreached back in May and was slapped down by the voters – just as President Jackson once slapped down Chief Justice Marshall (not Jackson’s best moment, but a good example of the effective limits of judicial authority). In the wake of the disastrous Dred Scott decision, it took two decades and the patient work of a new generation of justices to rebuild the Supreme Court’s moral authority. These ought to be warning signs for justices who may consider themselves to be some kind of super-legislature to humble themselves a bit and stick to the law.
If gay marriage is good public policy, then proponents ought to be able to marshall good arguments and enough supporters to defeat Proposition 8 (or the similar laws and referendums passed in 29 other states). That they weren’t able to in a Democrat landslide election says a great deal about whether or not gay marriage should be the law of the land.