The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition of marriage equality has done more harm than good, if not to that specific cause then to gay rights or civil liberties more generally. Indeed, prof. Klarman claims that that’s what usually happens when courts oppose public opinion in defence of the rights of unpopular minorities. Unpopular judicial decisions provoke backlash, and the price of a sometimes inconclusive victory in the short term is decades of hostile legislation. Prof. Cole argues that this isn’t necessarily so; what prof. Klarman characterizes as backlash would have happened regardless of the courts’ interventions, but without those things would have been even worse; and in the case of same-sex marriage and gay rights more generally, courts have done a lot of good, not least by forcing people to confront issues which would otherwise have remained marginal at best. This is all very interesting, though I don’t know enough to tell who is right and to what extent.
What I would like to comment on is prof. Cole’s more general argument about judicial review and its role in advancing civil liberties. “The very reason,” he writes
we protect certain rights through constitutions that resist revision by majorities is that some rights by their nature are unlikely to be realized through the ordinary political process—particularly the rights of minority groups, unpopular dissidents, or the criminally accused. If we could rely on the ordinary political process to protect such rights, there would be no need for protecting them through judicial enforcement of constitutional principles. But history shows that we cannot.
Precisely because constitutions are needed to safeguard unpopular rights, protection of those rights is likely to spark a popular reaction.
Constitutional protections can mean, as in the case of marriage equality, that “the legal argument [is] very strong” despite the hostility of public opinion. And of course the courts’ job is to look to the law, not to opinion polls. So if their decisions provoke backlash, “we might well take that as evidence that they are actually performing the function that we expect from them.”
I think this is much too optimistic, or maybe too simplistic. Courts aren’t independent of public opinion in the way prof. Cole seems to suggest. Courts are certainly not supposed to look at opinion polls, and I’m not suggesting that they do, though some judges at least are clever politicians in their own right. But clever politicians or not, and however good lawyers, their legal ideas and arguments don’t come out of thin air. Their ideas about civil rights are only as advanced―and sometimes much, much less advanced―than those of their time.
The famous case of Griswold v. Connecticut, 381 U.S. 479 (1965), which struck down a state law prohibiting the use or provision of contraceptives or information about contraceptives, even to married couples, is an apt illustration. Eventually, it was read as standing for a general principle of sexual privacy and relied on in opinions striking down prohibitions on abortion and gay sex. If the Supreme Court of the United States rules in favour of marriage equality―this year or at some point in the future―that will be, and will be said to be, the result of a process that started in Griswold. Yet that opinion did not necessarily promise so very much. The majority went to great pains to argue that its holding applied to married couples, no one else. Justice Goldberg’s concurrence refers to “statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication” and endorses statutes criminalizing homosexuality (498). Now admittedly I cannot tell for sure, but I suspect that the idea that such statutes would soon enough be considered, beyond doubt, unconstitutional, would have been surprising to the Griswold court, perhaps astonishing and distressing.
At any given time courts can only do so much for civil liberties. The beauty of judicial review isn’t that it can accelerate progress in this area by leaps and bounds over popular opinion. It might, however, do some useful things. One is to bypass legislatures which aren’t even prepared, for whatever reason, to go as far as the opinion of their constituents. Another, as prof. Cole points out, is to bring some issues to the public’s attention. And a third, which Griswold’s progeny (contraceptives, I suppose, don’t always work as intended!) demonstrates, is that judicial decisions, probably to a greater extent than legislation, have to stand and can be interpreted as standing for certain principles, which can then be extended beyond the expectations of their authors, and used to advance rights and liberties further―when judges, and perhaps the public, can accept the next step.