The Myth of Judicial Backlash

[marmar]

from the American Prospect:



The Myth of Judicial Backlash

The failure of gay marriage in Maine proves one thing -- it's not the courts voters mobilize against; it's the issues.

Scott Lemieux | November 12, 2009 | web only


In an unfortunate exception to a happy election night for progressives in 2008, California voters passed Proposition 8, which overturned a state court decision holding that the state's ban on same-sex marriage was unconstitutional. This led to another predictable round of claims that judicial opinions produce a disproportionate backlash and that therefore using litigation to pursue changes to the status quo is always a mistake. The California justices, argued Jeffrey Rosen, were "naive and overconfident blunderers." "The issue was pressed too quickly," asserted The Atlantic's Megan McArdle, "and in the wrong venue." The conventional wisdom of pundits assures us that landmarks like Roe v. Wade and Goodridge v. Massachusetts represent similar counterproductive "blunders."

Oddly, this same group has had very little to say about the failure of the 2009 initiative seeking to overrule Maine's same-sex marriage law. In broad outlines, the outcome was strikingly similar to California's in 2008: Well-motivated conservative groups attacked the state's legalization of same-sex marriage using similar arguments and successfully overturned it via the ballot. Maine was ignored by professional contrarians, however, for the obvious reason that Question 1 overturned an act of the legislature, not a judicial ruling. Maine represents another example of a fact that should be obvious: Opposition to judicial decisions legalizing same-sex marriage is substantive, not procedural. Prop. 8 and similar initiatives are motivated by opposition to same-sex marriage, not by some principled opposition to judicial review.

Even viewed in isolation, the narrow passage of Prop. 8 represented pretty feeble evidence for claims that judicial rulings produce a unique level of backlash. Most significantly, a 2000 initiative banning same-sex marriage passed 61.4 percent to 38.6 percent; Prop. 8 passed 52.2 percent to 47.8 percent. In other words, the California court's ruling did not arrest long-term trends in favor of same-sex marriage. More important, no one state can provide evidence about the effects of the courts, because we cannot know what would have happened if legislatures (rather than courts) had acted. To attribute the results of Prop. 8 to anger at the courts -- as opposed to a more general opposition to same-sex marriage -- is begging the question. We therefore should consider other states to see if legislative grants of same-sex marriage are inherently more stable than similar judicial holdings. Such comparisons make it clear how weak the case for a unique judicial backlash is. ............(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=the_myth_of_judicial_backlash

[Warpy]

1. It also proves one thing the framers knew

and that is the civil rights of a minority should never be up for majority vote. The majority will vote to strip the minority of rights every single time.

That's why we have the Bill of Rights, to prevent the tyranny of the majority over the minority.

[Demeter]

2. It Even Used to Work

before the Supreme Court was bought and fixed like a stray dog.