What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?
Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.
In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash. The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.
When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them. These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.
There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”
Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject. In contrast, a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.
The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.
It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage.
One of the defects of public discussion of the Supreme Court is that journalists who are so enamored of process stories in electoral contexts cut straight to the bottom line—who won, who lost—and skip the constitutional reasoning where the judiciary is concerned. That was how one of the biggest jurisprudential stories of last week—the extraordinary whiplash judges and partisans on both sides displayed between Tuesday’s ruling on the Voting Rights Act and Wednesday’s on DOMA—got overlooked. Call it a tale of two laws, each passed by overwhelming legislative majorities, one gutted by the Court’s conservatives, the other overturned by the Court’s liberals (the evanescent Justice Kennedy counts as both), each of whom accused the other of activism and called for restraint—all within 24 hours, and passing virtually without remark. Those who hope for a consistent ethic of judicial restraint—which is to say those who haven’t been paying attention—will have to wait for another term.
As Richard Reinsch notes, Justice Scalia's dissent in Windsor is a powerful response to Justice Kennedy's majority opinion, which "put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism." It occurred to me that the Supreme Court has rarely expressed such comprehensive and prominent disdain for whole classes of citizens. True, Justice Kennedy had leveled a similar accusation in Roemer and Lawrence. But the law at issue in Roemer resulted from a discrete act of the people of Colorado, and Lawrence involved a largely unenforced statute. In those cases, the target of his disdain was selective, involving citizens…