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. Justice Kennedy’s opinion in United States v. Windsor 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. The Court gave no serious consideration to the possibility that citizens and legislators were primarily influenced by the historic nature of marriage over thousands of years. Thus, the opinion was written in way that made it difficult for lower court judges to uphold traditional marriage distinctions without fear of being accused of bigotry.
The Court in fact reached out to displace the political process by reaching out to decide the Windsor case. There was no reason to reach the merits of the constitutionality of DOMA because there was no live controversy, given that the Obama administration was conceding all the relief Windsor required. Consequently, far from exercising “the passive virtues,” the Court has manipulated its own jurisdiction to send signals to the lower court to provide momentum for a decision on the constitutionality of same-sex marriage.
This performance constitutes judicial stage management—the opposite of permitting the political process to play out. Undoubtedly the Court has been shrewder than it was in Roe v. Wade in avoiding backlash. But that is a different matter. Indeed, creating a judicial façade that encourages commentators to say the Court is permitting a space for politics is – in the long run – more dangerous to democratic self-rule than a more straightforward admission by the Justices that they are making the political decisions for themselves.