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In praise of judicial activism

The following opinion piece by Mark Rush, director of International Education and Waxberg Professor of Politics and Law at Washington and Lee, appeared in the Nov. 4, 2015, edition of the Richmond Times-Dispatch and is reprinted here by permission.

As the new Supreme Court term begins, the country still feels the impact of last term’s Obergefell decision, which struck down bans on same-sex marriage. It was a flawed but necessary decision, akin to Brown v. Board of Education.

When the court struck down public school segregation, Chief Justice Earl Warren alluded to a “badge of slavery” that racist practices pinned on black Americans. In Obergefell, Justice Anthony Kennedy made similar references to the plight of same-sex couples who were subjected to systemic inequality.

Both decisions relied on emotional appeals to systemic injustices and inequalities that had been perpetuated and, some would argue, justified by the fact that they were the product of the smooth, but imperfect, function of our democratic process.

Chief Justice John Roberts made an eloquent and, perhaps, constitutionally stronger counterargument in his Obergefell dissent. He did not condemn the substance of the majority decision. Instead, he condemned the Supreme Court’s hubris for overruling that democratic process in favor of the preferences of five of the nine court members.

“Who do we think we are?” he asked. How dare the court challenge the people’s wisdom?

Were the court conducting a seminar on legal or democratic theory, then reliance on an antiseptic vision of separation of powers, judicial deference to the democratic process and a trust that democratic deliberation will ultimately “get it right” might seem reasonable. But harsh realities indicate that 18th- and 19th-century visions of deliberative democracy no longer describe the workings of contemporary politics.

The same critics who condemn the court’s usurpation of the democratic process are quick to condemn the fact that our legislatures are gerrymandered, captured by rent-seeking special interests, and populated by incumbents who are virtually unbeatable.

As Jonathan Rauch has demonstrated in “Demosclerosis,” James Madison’s vision of a democratic process that treated all interests equally (by making it difficult for any one interest to govern) has given rise to a process that is colonized by entrenched interests that have secured special favors from our legislators.

Thus, in some states, it is more difficult to gain entry into the pet-grooming profession than it is to get an EMT license because, God bless them, those pet groomers are well-organized.

Critics of the court’s activism seek refuge in antiquated visions of democracy that do not describe reality. Powerful interests operate at the ongoing expense of weak, “discrete and insular” minorities — such as same-sex couples — that can neither garner majority power nor overcome the accumulated power or prejudice of entrenched interest groups.

So, those minorities go to court and, in cases such as Obergefell, they win amidst cries of judicial hubris. But critics of the court are, in fact, disingenuous. If the democratic process is as powerful, thoughtful and wise as Roberts or Justice Antonin Scalia contend, then why is there no congressional response to decisions such as Obergefell?

Congress has the power, as Mark Twain quipped, to change white to black and black to white. It has responded to and either overruled or ignored Supreme Court decisions in the past. Why is it silent after controversial decisions such as Obergefell?

From its silence, we can infer either that our elected officials agree with the court’s decision or that the democratic process is so constrained by entrenched interests that it is unable or unwilling to muster a response to it. Regardless, congressional inaction belies the romantic democratic visions of Roberts, Scalia and the many academic critics of judicial activism: We can’t rely on gerrymandered, entrenched legislators to act in the public interest.

The United States is a constitutional democracy in which the executive, legislative and judicial branches are empowered to check and balance one another. In Obergefell, the court checked Congress and the state legislatures in favor of a minority group seeking the redress of inequality. Congress is free to respond to and thereby “balance” the court’s decision. If it chooses not to do so, perhaps the court critics should train their sights on those unbeatable incumbents and ask why they choose not to assert their democratic power.

Mark Rush is director of International Education and Waxberg Professor of Politics and Law at Washington and Lee University. Contact him at rushm@wlu.edu.

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