Private: Judicial Power, Same-Sex Marriage and Political Backlash: Why the High Court Was Right to Wait

by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

First, simply as a descriptive matter, the Supreme Court has consistently taken political considerations into account when deciding important constitutional cases. From the first Justice Roberts in the 1930’s who changed his votes on controversial New Deal laws with President Roosevelt’s court packing plan looming in the background (“the switch in time that saved nine”), to the Warren Court’s decision in Brown II to allow states to implement desegregation with “all deliberate speed” (which meant a decade, not right away) to the second Justice Roberts refusing to join the other four GOP Justices who voted to strike down Obamacare in its entirety, the Court has always been acutely aware that the only currency it possesses (since it has neither purse nor sword) is the faith of the American people. This institutional self-knowledge explains, as Professor Barry Friedman constantly reminds us, that the Court rarely strays too far from mainstream public opinion and is quite cognizant of the boundaries of its own power, and how to keep that power.

The most obvious example of the Supreme Court taking into account the political implications of its decisions is the landmark case Planned Parenthood of Pennsylvania v. Casey, in which the Court reaffirmed to a limited degree the right to have an abortion first created in Roe v. Wade. In Casey, the three member plurality self-consciously explained that, were the Court to reverse Roe outright, as both Pennsylvania and the Bush Administration urged it to do, the American people might come to view the Court as bending to the wind like just any other political institution. The Justices explained that the Court should be reluctant to overturn such an important case “under fire.”

In his scathing separate opinion, Justice Scalia did not miss the irony of the Casey plurality using a political forecast about the likely reactions of the American people to justify the Court’s legal credentials.

Despite Scalia’s critique, however, the reality is that the Supreme Court routinely takes practical (non-legal) factors into account when it resolves our most controversial and difficult social and political issues. One doesn’t have to be a radical legal realist to understand that personal values writ large (including political calculations) influence the Justices’ decisions when text, history, and prior cases run out. If that is true for abortion, economic legislation, and segregation, why not same-sex marriage?

I had much more sympathy for the second objection to the Court going slow on same-sex marriage – that gays and lesbians had an immediate right to marriage equality and shouldn’t have to wait.

If the question had been what was in the best short term interests of gays and lesbians (and our society) the answer would have been easy: complete marriage equality. But, I think a better question was, and is, what is in the best interests of gays and lesbians over the long run. On that issue, I remain convinced that a decision back in 2013 establishing marriage equality on a national basis would have been a terrible mistake for the same reasons Roe v Wade had unfortunate consequences for both the right to the choose and our political and legal systems as a whole.

The Court’s decision in Roe helped give birth to the powerful New Right movement of the 1970s, the predecessor to the Tea Party. Right wing televangelists Jerry Falwell and Pat Robertson, politicians such as President Reagan and Senator Henry Hyde (of the infamous Hyde Amendment), and right wing intellectual organizations such as the Federalist Society (think Scalia, Bork, and Meese), all used the Court’s decision in Roe to amass great influence and power by successfully attacking the Court, judicial review, and progressive politics on the basis that the Court “invented” a right to abortion and imposed it on all fifty states. The backlash created by Roe significantly infected Presidential elections, judicial nominations, and local and national political campaigns.

Had Roe secured a strong constitutional right to choose, the backlash may have been worth it (for the left and those in favor of the right to choose). But, forty years after Roe, although wealthy women in urban areas have access to safe abortions (like they had prior to Roe), poorer women and women in rural areas still have to struggle to secure safe and affordable abortions and the situation is getting worse every year. Moreover, the constitutional right to choose hangs delicately on the coattails of a single Justice (Kennedy), and there is no assurance that the Court will reaffirm the right when the issue returns to the issue, in all likelihood, next year.

No less an advocate for women’s equality than Justice Ruth Bader Ginsburg seems keenly aware that the political backlash to Roe has proven destructive to women’s rights. She has suggested that, although she believes the Constitution protects the right to choose, Roe went too far by deciding the issue “in one fell swoop.” Her acceptance of the backlash theory may also explain why, despite being a strong and consistent advocate of access to the courts, she decided against granting standing to the litigants in the Prop 8 case preferring the issue be resolved by the lower courts.

Justice Ginsburg knows that, as the cliché goes, those who choose to ignore history are doomed to repeat it, and she likely did not want marriage equality to be as flimsy and delicate a right forty years from now as the right to choose is today. Not every important social issue that reaches the Court, of course, has the potential to create the kind of backlash generated by Roe but there was a substantial probability that a Court decision last year imposing same-sex marriage on over forty reluctant states would have been that kind of ruling. The course the Court adopted, and the one obviously favored by Justice Ginsburg, of striking down DOMA but allowing the issue to percolate in the lower courts, increases the chances that when marriage equality for everyone finally arrives, it will be here to stay.

Equality and Liberty, LGBTQ Equality, Reproductive Rights