by Glenn Greenwald

The Brookings Institutions' Ben Wittes [1] has an article in The New Republic [2] decrying the decision of the California Supreme Court striking down that state's discriminatory marriage law. Wittes' criticism of the decision reflects the standard attack on the California Supreme Court, an attack that relies upon what can only be described as profound ignorance about how our system of government works.

Wittes' principal objection is that the California court's ruling was wrong because it is contrary to evolving democratic efforts to forge a "compromise" on the issue of gay marriage and because a large majority supports the law (h/t Andrew Sullivan [3]):
Another cost is that slow drip-by-drip accretion of power to courts, that steady undermining of the right of people to govern themselves. In California, the deprivation of that right is exquisitely on display, for the compromise the court upset involved decades of negotiation and movement. The nucleus of California's domestic partnership law dates from the late 1970s. Over time, it has grown more generous, by 2006 including all of the rights and obligations of marriage. In 2000, however, the people of California voted overwhelmingly to limit marriage itself to opposite-sex unions. The legislature has twice voted to extend marriage to gay couples -- and Governor Schwarzenegger has twice vetoed the bill. The current arrangement, in short, reflects a series of evolving compromises set against the backdrop of a quickly developing social consensus concerning the value and honor of same-sex relationships -- a process that the court treated as just so much bother on the way to a self-evident truth. Once upon a time, this bother had a name. We called it democracy.
This reasoning -- that it undermines "democracy" and constitutes judicial tyranny when a court strikes down a popular law -- is so pervasive every time there is a controversial court decision. But it is as woefully misinformed as it is common. That a law invalidated by a court is supported by a large majority is not an argument supporting the conclusion that the court's decision was wrong. Central to our system of government is the premise that there are laws which even the largest majorities are prohibited from enacting because such laws violate the constitutional rights of minorities. Thus, the percentage of people who support the law in question, and how lengthy and painstaking the process was that led to the law's enactment, is totally irrelevant in assessing the propriety of a court decision striking down that law on constitutional grounds.

Contrary to Wittes' extremely confused argument, a court striking down a law supported by large majorities is not antithetical to our system of government. Such a judicial act is central to our system of government. That's because, strictly speaking, the U.S. is not a "democracy" as much as it a "constitutional republic," precisely because constitutional guarantees trump democratic majorities. This is all just seventh-grade civics, something that the Brookings scholar and those condemning the California court's decision on similar grounds seem to have forgotten.

The duty -- the central obligation -- of judges faithfully applying the law and fulfilling their core duties is to strike down laws that violate the Constitution, without regard to what percentage of the population supports that law, and without regard to whether it would be "better" in some political sense if democratic majorities some day got around to changing their minds about it. It's perfectly appropriate for, say, marriage equality advocates or political candidates to take into account whether it would be preferable, in some political or strategic sense, to achieve gay marriage incrementally or legislatively, only once there is majority support for it. But that is a completely inappropriate factor for a judge to consider, because the judge's sole consideration is whether the law is consistent with Constitutional protections.

Alexander Hamilton, in defining the core function of federal judges in Federalist 78 [4], explained this as clearly as it could be explained (though apparently not clearly enough for Wittes):
wherever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
When -- to use Hamilton's formulation -- judges "disregard" a "particular statute" in favor of constitutional guarantees, they aren't undermining our system of government. They're upholding it. The principal purpose of the Constitution is to prohibit the enactment of rights-abridging laws which, by definition (given that they are being democratically enacted), are supported by majorities. Anyone who argues that a court is acting improperly solely by virtue of the fact that it is striking down a popular law is someone who doesn't believe in the American system of government created by the Founders. None of this is to deny that there are reasonable grounds for objecting to the California court's decision. A court acts improperly when it strikes down a law which no constitutional provision prohibits -- in exactly the same way, and to exactly the same extent, as it acts improperly when it upholds a law that does abridge a guaranteed constitutional protection. The only relevant question is whether the law abridges rights secured by the Constitution. Thus, one can coherently criticize the California court's decision by arguing that it misapprehended and misapplied the rights guaranteed by that state's Constitution as defined by binding California precedents interpreting those provisions.

But Wittes -- along with most of those objecting to this decision -- doesn't bother with any of that. The Brookings scholar never analyzes any provision of the California State Constitution, nor does he reference a single prior ruling from the California Supreme Court which defines the scope and meaning of those provisions. Instead, his attack on the court's decision rests on the fact that a majority in California liked this law; that California's marriage law is more "progressive" than those in most other states; and that the statute was the by-product of a long, evolving democratic negotiation. That isn't a constitutional or legal analysis. It's just ignorant demagoguery.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act? [5]," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy [6]", examines the Bush legacy.
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