The Supreme Court’s Radical New Precedent

Out of all the newsworthy comments during this week’s Supreme Court debate over the legality of same-sex marriage bans, none was more revealing — or troubling — than that which came from Justice Sonia Sotomayor.

Before pointing out that “we let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954,” she asked: “If the issue is letting the states experiment (with same-sex marriage bans) and letting the society have more time to figure out its direction, why is taking a case now the answer?” The question embodied much of sentiment of other justices, leading the New York Times to summarize the hearing with the headline: “Justices Say Time May Be Wrong for Gay Marriage Case.”

Three theories are at work in this line of reasoning: 1) The judiciary has an obligation to make sure its rulings reflect public opinion 2) judges should always avoid rulings that conflict with public opinion and 3) the Supreme Court should not immediately strike down laws violating the Constitution’s equal protection precepts because state fights over those statutes allegedly help the public reach consensus on those underlying issues.

Though Sotomayor’s logic appears reasonable at first glance, it isn’t. First and foremost, it is wrong for anybody to refer to a half-century of uninterrupted segregation as anything but awful, regardless of whether the struggle against such bigotry ultimately moved public opinion in the right direction. Additionally, the deeper jurisprudential principle being forwarded is distasteful. It radically reimagines the American judiciary as a mere validator of majority public opinion.

That, of course, is not what the judiciary is supposed to be. Elected legislators are charged with representing the public will in matters of legislation. But in the words of Alexander Hamilton, judges are appointed — and not elected — to a separate branch of government in order to ensure that their rulings do not represent the fleeting whims of public opinion and instead represent nothing “but the Constitution and the laws.”

This is particularly important when it comes to civil rights fights over atrocities like same-sex marriage bans — that is, bans denying the same legal protections for LGBT couples that are granted to heterosexual couples.

Source Article from http://www.nationofchange.org/supreme-court-s-radical-new-precedent-1364737137

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