Supreme Court Justice Ruth Bader Ginsburg doubled down over the weekend on her ongoing criticism of Roe v. Wade. Ginsburg’s concern is about backlash: She says that by issuing the ruling that legalized abortion across the country in 1973, a group of “unelected old men” stopped the momentum that was building among the states. "That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," she said at the University of Chicago Law School. "My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."
Ginsburg posed an alternative: “judicial restraint.” As she put it, “The court can put its stamp of approval on the side of change and let that change develop in the political process." This may have implications for the court’s twin cases this term about gay marriage: There will be no majority on the court for a sweeping “50 state solution”—a ruling that would strike down state bans on gay marriage, given the constitution’s promise of equality, and allow same-sex couples to marry everywhere in the country. Justice Anthony Kennedy sent a similar signal in March when he answered a question about whether the court decides too many issues that could be left for the legislature. "I think it's a serious problem,” Kennedy said. “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say."
I’ve also been anxious about a sweeping ruling on gay marriage, purely because of politics. Legally speaking, extending the right to marry, which is rooted in the constitution, to gay couples is clearly the right call. At oral arguments in March, opponents could barely muster a coherent counter argument. But there’s still a question of timing: When should the court answer the ultimate question? When the Supreme Court purports to settle for the whole country a huge social issue that divides the public—especially one in which religion is an undercurrent, and support varies by region—unintended consequences can follow. If the justices take it slow, by contrast, a controversial ruling can become less so. Meanwhile, advocates have time to make change through the democratic process—in ballot initiatives or laws passed by the legislature. That makes a shift like allowing gay marriage feel close to the ground rather than imposed from on high. And wondrously, that’s very much happening, with Minnesota becoming the sixth state to legalize gay marriage just since the November 2012 election, bringing the national total to 12 plus the District of Columbia.
That’s what Ginsburg and Kennedy seem to be getting behind. At the same time, their scornful references to unelected judges sound off-key. Do they really see their own court as a bunch of misguided meddlers? And surely they don’t mean that judges should never step in to protect the basic rights of a minority when the legislature or the voters fail to do so? That would be at odds with plenty of decisions they’ve both signed (see Lawrence v. Texas, striking down state sodomy laws, and the rulings banning the death penalty for juveniles and the mentally impaired).
While I’m also scarred by the intractable, depressing national divide over abortion, the direct line Ginsburg draws from Roe to backlash has been vigorously challenged by Linda Greenhouse and Reva B. Siegel of Yale Law School (where I am a fellow). As they lay out here, in their book Before Roe v. Wade, the political battle over abortion predates Roe. It’s true that on the eve of Roe, polls showed increasing support for leaving the abortion decision to a woman and her doctor (support for that premise actually polled higher among Republicans than Democrats). And yet, the “momentum” Ginsburg claims for legalizing abortion had stalled. A minority of avid opponents had stopped state bills from passing. “It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand,” Greenhouse and Siegel write.
Still, Roe has come down to us as the Supreme Court’s boomerang. Whatever the historical nuances, on abortion, the country remains miserably riven and stuck. Last week’s Gallup poll about abortion is not the trend line gay marriage proponents want to see, either. And so far, happily, it’s not. Support for same-sex marriage has been ticking upward, building to 53 percent late last November, according to Gallup.
One way to read these polls: Don’t mess with progress. The court shouldn’t swoop in to decide gay marriage for all the states. But as Salon’s Irin Carmon has pointed out, the fear of backlash shouldn’t be an excuse for the court to be gun-shy, either. The best reading of Ginsburg’s notion of the court putting a “stamp of approval on the side of change,” is that she and her colleagues should stand up for gay rights by striking down the Defense of Marriage Act and also California’s ban on same-sex marriage. Leave the other states alone until the next case comes around. It won’t take long. The country’s movement toward accepting gay marriage is zipping along. The indefatigable Nate Silver predicts that in 2016, gay marriage will poll below 50 percent in only 17 states, and by 2020, the number will be just six. Somewhere in there, the problem of backlash will solve itself.
This is the story of the midcentury legal battles over interracial marriage. In 1948, the California Supreme Court struck down the state’s ban as a violation of equal protection. The Supreme Court stayed out of the fray, however, for two more decades. Should it have moved earlier? Yale law professor William Eskridge, in his brief in the gay marriage cases, answers no. He cites the potential for backlash triggered “by a too-early ruling.” By the time the court decided Loving v. Virginia, it had to strike down the laws of only 16 states.
Is gay marriage the exception to the cautionary rule? Given the poll numbers and the weakness of the arguments against it, how much backlash would a 50-state ruling really trigger? With a wave of Republicans recently announcing their support, I’ve wondered whether my fears are exaggerated. Maybe the country would shrug and go home to RSVP to their wedding invitations.
But when you break down Silver’s polls by region, they reveal entrenched opposition in the South, and to a lesser degree in the West. I still worry that too much, too soon from the Supreme Court could become fodder for another wave of states’ rights anger. I called NYU law professor Barry Friedman about this, because his book, The Will of the People, is all about the court’s relationship to public opinion. He brought up Furman v. Georgia, the Supreme Court’s 1972 ruling against the death penalty. Beforehand, support for the death penalty had dropped to a low of 41 percent. There was regional variation, with most executions occurring in the South. Then came Furman. The Supreme Court struck down the existing state death penalty laws, and “opinion polls showed skyrocketing support for the penalty—more than 60 percent by 1975,” Friedman writes. The court had left the door open for states to come up with alternative death penalty statutes, and by the mid-1970s, 35 states and Congress had passed new laws. “It was like, ‘the Supreme Court says no death penalty? Screw you, we’ll have one next week,’” Friedman says.
What’s the lesson for gay marriage? “This one is really hard to call,” says Friedman. “It seems safe to come out of the water, but you just never know.”