Supreme Court gay marriage ruling: We can now stop fearing social progress through the courts.

We Used to Fear Social Progress Through the Courts. Obergefell Just Changed That.

We Used to Fear Social Progress Through the Courts. Obergefell Just Changed That.

The law, lawyers, and the court.
June 29 2015 6:00 AM

The Justices’ Justice

For years we feared the consequences of pushing social progress through the courts. Obergefell v. Hodges will prove we shouldn’t.

News interns run out with the ruling regarding same-sex marriage from the U.S. Supreme Court June 26, 2015 in Washington, DC.
News interns run out with the ruling in Obergefell v. Hodges from the Supreme Court on June 26, 2015, in Washington.

Photo by Alex Wong/Getty Images

We will always remember Friday, the day the Supreme Court recognized in Obergefell v. Hodges that the Constitution guarantees a right to same-sex marriage. We will remember the date the decision happened: June 26, 2015. We will remember where we were when we first heard about it. As time passes, we will come to remember the decision for something else too. We will come to see Obergefell as the moment when we started to see the court as an institution to be embraced as a crucial leader in American social progress, rather than as an institution to be feared because of the uniquely problematic backlashes we once believed its more progressive decisions could generate.

It was a different memorable day and decision that gave birth to the modern version of this backlash argument. On May 17, 1954, the court decided in Brown v. Board of Education that the Constitution prohibited racial segregation. The reaction against the court was harsher and more pervasive than many had anticipated. Massive local resistance to Brown—particularly in the South—meant there was little school desegregation in parts of the country for almost a decade. Members of Congress drafted the Southern Manifesto to express opposition to Brown, with some calling for the impeachment of members of the court. 

As the next few decades followed, the court continued to issue landmark decisions—most notably Roe v. Wade—that also generated strong and hostile reactions. Many started to argue that it was the court itself that was institutionally responsible for generating these reactions. Rather than turning to the nine justices for help with your cause, many in the legal and political worlds thought it best to look elsewhere in the government.

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This backlash argument always stood on two formidable pillars, one psychological and one political. First, some thought that the court generated unique problems because of how the American political brain works. Americans are proud citizens in a democratic society, a society that makes its most important decisions through elected officials selected by voters. If nine people no one voted for make important decisions, voters would rebel against that court. Our democratic brain resists an undemocratic court.

Indeed, this argument is a common one in our public discussions about the court. In 1968, Richard Nixon campaigned for president against unelected, activist judges. As a junior senator from Illinois, Barack Obama expressed dismay at those who had “lost too much faith in democracy” and were turning to the courts. Just a few months ago—during oral arguments in Obergefell—Chief Justice John Roberts stated as a matter of universally accepted fact that “[p]eople feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

Second, some thought the court generated unique problems because it was composed of nine incompetent politicians. The court was thought to decide issues in the wrong way at the wrong time, contravening deeply and widely held public sentiments. Ruth Bader Ginsburg made her name before being a justice by litigating for women’s rights, but she still has expressed discomfort with Roe because she believes many Americans were not ready for it in 1973. When Hollingsworth v. Perry—one of the gay marriage cases that reached the court in 2013—was first filed, many worried that the justices would issue a decision so out of touch with public opinion that gay marriage would be worse off as a result.

These backlash arguments have become such a part of how we think about the court that they are used by those across the ideological spectrum, in all three branches of government, and even in high school, undergraduate, or law school textbooks and casebooks. Several generations of Americans have taken these lessons to heart and have more often looked away from the court as a part of pursuing their agendas. As I wrote more than a year ago, there are fewer and fewer voices arguing that the court can participate in interpreting our Constitution to make America a better place as a result.

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Obergefell could change that. As we start to piece together the events that led to the court’s decision—and as we see the reactions to last Friday’s decision in the years ahead—the foundation on which backlash rested will start to crumble. Rather than fearing a distinctive backlash against the court, we might come to see that the justices are not uniquely disadvantaged in pursuing justice. The court might come to be seen as being just as good as—and maybe even sometimes better than—the other branches of government in achieving change. 

Consider, first, that the events leading to Obergefell never really validated the argument that the American political brain uniquely dislikes those in robes. Many academic studies, including some about gay marriage, have demonstrated that Americans are indifferent to the court as compared with another institution resolving the constitutional status of gay marriage. My colleague Donald Braman and I studied this issue in 2010, and we found that Americans responded no differently to gay marriage becoming the law of the land because of a decision by the court (as happened on Friday) than if gay marriage became the law of the land because it came from Congress.

Just like the prologue to Obergefell questions whether we should fear the Supreme Court more than other branches, it is safe to assume the epilogue will as well. The positive emotions felt by those supportive of gay marriage will not be dampened by the fact that the result came from nine justices who never appeared on a ballot. Those who have come out to criticize the court for being the institution to nationalize gay marriage are the same who have criticized other attempts to nationalize or otherwise support gay marriage by other institutions.

If Americans did care about which institution resolved their most important constitutional questions, the Supreme Court would surely not be their least favorite. Approval for Congress approaches all-time lows in many public opinion polls. By many measures, support for the court tends to be higher than approval for whoever the president happens to be at a particular time.

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Second, the backlash argument undervalued the political intelligence of the Supreme Court. The justices are actually pretty savvy political actors. In our polarized America, the president tends to make decisions that are loved by half of Americans and hated by half of Americans.  Congress is so dysfunctional that no one likes it, and each house of Congress spends time passing bills that appeal to increasingly fewer and fewer Americans.

The Supreme Court stands proudly close to the middle of American political life. By some studies, the court’s decisions tend to be more in touch with where the median American is more often than do the other branches of government. Consider the history of gay rights litigation, in which the court has not jumped ahead of national majorities but instead consolidated them. In 2003, the court invalided a Texas law criminalizing consensual same-sex sodomy in Lawrence v. Texas. Most Americans approved of the court’s decision because America—not yet ready for national gay marriage—was ready for national protection of private sexual decisions. In 2013, when the court invalidated the Defense of Marriage Act in United States v. Windsor, majorities supported that decision.

Likewise, the future is not likely to see large numbers of Americans reacting against a court out of touch with American public opinion because of its decision in Obergefell. Solid majorities of Americans support gay marriage. Republican presidential candidates have criticized the decision but are unlikely to make it a big part of their primary campaigns, let alone mention it once in their general election campaigns. It is hard to imagine that a Republican president would try to overrule Obergefell. Besides, nearly two-thirds of young Republicans support same-sex marriage anyway.

We have three branches of government, and each branch of government is capable of doing great things. If Brown and Roe came to stand to many as cautionary tales about the limitations of the Supreme Court, Obergefell could be symptom and cause of a court that on some occasions pushes America proudly into a more diverse and more tolerant 21st century.  

Writing a generation ago, the famous law professor and law school dean John Hart Ely wrote of his former boss Chief Justice Earl Warren that “[y]ou don’t need many heroes if you choose carefully.” We must remember that sometimes heroes can wear robes too.