Caution: The Shrewd Form of Judicial Activism

Caution: The Shrewd Form of Judicial Activism

-Christopher Carroll

The highest profile Supreme Court decisions of the year are fast approaching. Decisions on the constitutionality of the Defense of Marriage Act (DOMA) and California’s Proposition 8 are due next week.

At this moment, the justices are contemplating, discussing and debating such questions as standing, ripeness and merit of both cases, which is to say nothing of the issues of application of the 14^th amen

Rally for Marriage Equality (Photo credit: vpickering)

dment, equality, state sovereignty and judicial precedence implicated by these issues. At the same time, those justices inclined to rush progress forward must consider the best interests of the nation and the same-sex marriage movement. Hopefully they will realize that addressing these two cases with caution and restraint will be an extremely shrewd decision.

The justices certainly are aware of the effect that the holdings, dicta and dissents written in their hallowed chambers will have on society. They certainly are aware that they can have both a minor or major impact on the direction of society and speed of change in the country. But caution must be taken. On the one hand, if they get too far in front of the public on the immensely important and difficult issue of marriage equality, they could cause cultural and societal strife and backlash, thus crippling the natural progress witnessed in America of the past 50 years. Yet, on the other hand, if they stay too far behind, they may slow down or even stop the country’s steady march toward equality.

Though Justices are supposed to divorce public opinion and custom from judicial review, on particularly important cases they must find a way to bear cultural practice, tradition and habit in mind, even if through disguised means.

Courts around the world must at times consider the public opinion, practice and culture. In South Africa, the Supreme Court has had to be very careful in examining laws and cases that bring common law and cultural standards and tradition into conflict. The famously important Supreme Court in India has taken Public Interest Litigation further than any other in an attempted to bring equality to all social and economic levels of Indian society, especially when cultural norms have prevented progress. Here in the U.S., justices have realized that an activist court can be both a boon for the country (see the Warren court decisions) and a danger.

Justice Ruth Bader Ginsburg has suggested that the 1973 Roe v. Wade case was mistimed. “Its not that the judgment was wrong, but it moved too far, too fast,” explained Justice Ginsburg at a Columbia Law School symposium in 2012. The speed Justice Ginsburg alluded to likely led to the incessant and acrid debate over abortion that has followed. Perhaps, Ginsburg would argue, her predecessors could have found a way to encourage progress on the issue while not going so far as to declare abortion constitutional across the entire country, regardless of whether or not the public was ready for it culturally. Perhaps, had they found the correct balance between progress and cultural practice, the country would have been spared the infighting Roe v. Wade has spawned in the decades that have followed and perhaps abortion would not still be such a divisive issue.

English: Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States (Photo credit: Wikipedia)

Nobody can say for sure what would have happened court acted more cautiously in 1973. However, all signs seem to suggest that abortion was going to become an accepted part of American society. Indeed, by the time the court had taken the case, society was already well on its way to adopting it. If Justice Ginsburg is correct, the courts involvement was as detrimental as it was beneficial, and we have paid the price for the courts inability to show restraint.

Today, marriage equality is following a similar path. The gay and lesbian community is slowly becoming an accepted, if not yet always welcomed, part of society. Gay marriage is quickly Marriage equality is becoming increasingly accepted in the United States, evidenced by the growing number of states (as of now 12 states plus the District of Columbia) that have embraced same-sex marriage. Though some portions of the country seem to be lagging behind others, the issue seems to be making slow yet steady progress. It seems that Marriage Equality will become a part of America with or without the courts help. Justice Ginsburg’s caution may well be right on point. The Court can help this immensely important issue move forward, and it could hurt it irreparably.

The Justices must decide how involved they want to be in American society. The fact that Supreme Court justices are unelected is an obvious strength for American democracy and for the Court as an institution. However, it simultaneously makes the Court vulnerable to questions of legitimacy when it wades through public policy.

Forcing cultural change on others is always a difficult task and usually results in resentment and anger if not outright rejection and conflict. The United States Supreme Court, unlike the courts of India and South Africa, must approach judicial activism with extreme caution in matters as fragile and contentious as marriage equality and abortion.

The American Judicial system has tradition of its own, and breaking from it in too substantial a way and too suddenly, would only serve to de-legitimize the Court and set marriage equality backwards, perhaps crippling it for good. Our country must embrace our gay brothers, sisters, friends, parents and neighbors and we must ensure that every person is treated with the same dignity and respect regardless of their sex, race, or whom they love.

Caution must be observed. Conservative, rather than unrestrainedly exuberant and progressive, action must be taken. Change must be slow and steady. Only then will it win the race.