Somebody pointed out that earlier this week Roberts insisted that "the state" refers to any governing body, on either the state or federal level, and today he's insisting that that conflation would be bad. I keep hearing that he's clever, quiet, and playing a long game, but it's also possible that he's just making stuff up as he goes along.
I haven't read his opinion, but from the paragraph quoted, I'd guess he's not conflating state and federal, he's comparing judicial to legislative branches, and saying it'd be better for gay marriage to win legitimacy in the legislatures and populace, not be imposed by the courts.
Obama's favorite legal scholar, Cass Sunstein, is a judicial minimalist with similar views, I'm told. I think the warning example would be Roe vs. Wade, still fought heavily because abortion rights are pretty unpopular.
People talk about the courts protecting minorities from a majority, but if the majority really has it in, that won't work well. Arguably the courts work best when they clear away legal cruft that the majority hasn't gotten around to yet -- which given the rapid change in public opinion on gay marriage, seems to actually apply here.
I actually did see an article that argued "the Supreme Court got it wrong again, just as it did years ago with Roe vs. Wade." It's not clear if they honestly forgot Loving vs. Virginia or if they thought that wouldn't be wise to bring up.
Aye. The Supreme Court is pretty famous for only making controversial changes when a strong public approval wind is at their back. I seem to recall reading a few opinions/dissents (I forget which) way back when that argued the court's legitimacy depended on not pissing off the masses too much. Gah. At least they (at last) got this one right.
In this instance, I agree. While I am absolutely delighted that marriage is now not dependent on orientation, I would be happier if (when) it happened via the legislatures rather than the judiciary.
And yes, Roe is the cautionary tale. A substantial portion of pro-lifers wish Roe hadn't happened when it did, because it cut off the debate that was moving in the pro-life direction.
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james_davis_nicoll) wrote2015-06-26 10:22 am
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Obama's favorite legal scholar, Cass Sunstein, is a judicial minimalist with similar views, I'm told. I think the warning example would be Roe vs. Wade, still fought heavily because abortion rights are pretty unpopular.
People talk about the courts protecting minorities from a majority, but if the majority really has it in, that won't work well. Arguably the courts work best when they clear away legal cruft that the majority hasn't gotten around to yet -- which given the rapid change in public opinion on gay marriage, seems to actually apply here.
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And yes, Roe is the cautionary tale. A substantial portion of pro-lifers wish Roe hadn't happened when it did, because it cut off the debate that was moving in the pro-life direction.