With the Iowa Supreme Court overturning a state law banning homosexual marriage and the California Supreme Court pondering the same, it could be a tough month for democracy in America. The Iowa court earlier this month declared unconstitutional a statute similar to the Defense of Marriage Act passed by the U.S. Congress and the legislatures of 18 other states. These Defense of Marriage Acts expressed the values of the popularly elected legislators and governors of these 18 states. The California Supreme Court is considering action even more egregious, this being overturning a constitutional amendment adopted directly by a majority of California voters in the last election. This California referendum, similar to the constitutional amendments banning same sex marriage passed by the citizens of 29 different states, expresses directly the values of the voters.
The decision by the Iowa Supreme Court is not, of course, the first time a court has thwarted the will of the people. Courts in California are rather notorious for this, having ruled unconstitutional two popular referenda declaring illegal aliens ineligible for public services (Proposition 187) and seeking term limits on congressmen (Proposition 227), and also ruling unconstitutional California’s Defense of Marriage Act (a ruling that led to the constitutional amendment which the court is now considering). This thwarting of the will of the people is not limited to California. The U.S. Supreme Court in 1996 threw out a Colorado constitutional amendment approved by a majority of Colorado voters that prohibited any preferential treatment for homosexuals.
Each time a court overturns a referendum or statute expressing the values of the people or their elected representatives, confidence in the judiciary and the rule of law diminishes. The U.S. Supreme Court itself recognized this inevitable outcome of judicial action in one of the most closely watched cases of our generation, Planned Parenthood v. Casey. In Casey,the Court reconsidered its 1973 decision of Roe v. Wade but this time, unlike previous abortion cases, the pro-lifers appeared to have the edge. Since 1973, the avowedly pro-life President Reagan had nominated three justices to the Supreme Court (Justices Scalia, Kennedy, and O’Connor), and the professed pro-life President George H.W. Bush had added two more (Justices Thomas and Souter). With the pro-life Chief Justice William Rehnquist solidly in favor of overturning Roe, it appeared likely that the regulation of abortion would return back to the states for consideration of what, if any, protection the people’s representatives would give to unborn babies (prior to Roe v. Wade, some states gave little protection and some states extensive protection).
The Court in Casey affirmed a woman’s right within limits to abort her baby. The important aspect of Casey for purposes of this article, however, is the reasoning provided by the three Republican appointees (Kennedy, Souter and O’Connor) who commanded the decision in this case. They wrote that in spite of the continued controversy and annual January marches on Washington, generations of women had come to expect the right to abort. More fundamentally, the three Justices noted that the root of the U.S. Supreme Court’s power resides “in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” A large part of this legitimacy is based “on the very concept of the rule of law underlying our own Constitution [which] requires such continuity over time . . .”
Justice Scalia in his dissent directly addressed the legitimacy of the Court and the rule of law. He noted first of all that longevity of a ruling like Roe does not ensure its continued vitality and correctness – the “separate but equal” principles of Plessy v. Fergusoncontinued for three generations of blacks and whites before being overturned in Brown v. Board of Education. More importantly, Justice Scalia addressed the Court’s disregard of the expressed will of the people. He wrote: “As long as this Court thought (and the people thought) that we justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. . . . But if in reality . . . our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. . . . Value judgments, after all, should be voted on, not dictated . . .”
Yesterday’s Tea Parties demonstrate that ordinary people in America are frustrated because the will of the elite (a category that certainly includes the judiciary) seems to trump the will of the electorate. Iowa is certainly no exception to this perception. The more the courts flaunt the will and values of the people, the more the American people will question the legitimacy of the judiciary. At some point the people will simply reject the will of the rogue judiciary, leading to first sporadic and then more generalized break-down of the rule of law, which would have devastating consequences to the functioning of our society.
The courts can still forestall this by heeding the wisdom of Justice Scalia, who recognized that the values of five Supreme Court Justices must not trump the values of millions of American voters. Unless the judiciary wakes up, soon the American public will join the refrain of President Andrew Jackson, who said: “[Supreme Court Chief Justice] John Marshall has made his decision, now let him enforce it.”