The Least Dangerous Branch? The Court and Same-Sex Marriage

The Supreme Court’s historic decision yesterday in Obergefell v. Hodges to legalize same-sex marriage in all 50 states illustrates a point my students have heard me make for many years: the Court is a fundamentally political institution, one whose members are deeply concerned about maintaining its independence and legitimacy.  The result, as the Obergefell decision reminds us, is that the Court will rarely allow itself to get out in front, or fall very much behind, prevailing public opinion.

We can see this quite clearly by tracking the Court’s decision in a series of cases regarding gay rights, from Bowers v. Hardwick  through the Romer, Lawrence and Windsor cases and culminating in the decision announced yesterday in Obergefell v. Hodges. Viewed chronologically, the cases trace a steady progression in the evolution of Court doctrine, from upholding a Georgia law in 1986 criminalizing sodomy to yesterday’s landmark ruling that the Fourteenth Amendment’s due process and equal protection clauses requires a State to license a marriage between two people of the same sex.

In this regard, many observers likened yesterday’s decision to the Court’s 1954 ruling in Brown v. Board that outlawed segregated public school systems. But the reality is that, as Gerald Rosenberg persuasively argues, the Brown decision did little by itself to move public school desegregation forward. More generally, Rosenberg argues, in the absence of broad-based political support and legislative action by Congress, the Court is a poor vehicle for enacting social change. And, in fact, the evidence suggests that it wasn’t until passage by Congress of the 1964 Civil Rights and the 1965 Voting Rights acts that the barriers to racial discrimination began to fall.

Indeed, more often than not we have seen instances of the Court acting on behalf of temporary majorities, often during wartime, to curtail civil rights and liberties of minority groups, rather than protecting them.  More generally, as Robert Dahl first posited in his famous 1957 article, as a political actor the Court’s rulings tend to owe more to prevailing political opinion than to careful legal reasoning based on the Constitution and statute.

Why is the Court so responsive to majority public opinion? Dahl posited an indirect relationship, in which presidents and members of the Senate who are elected by – and thus are responsive to – public opinion choose judges who share their political preferences. Through this means the Court tends to be composed of justices whose views are not likely to be too far out of step with the mainstream. Other scholars have argued that the relationship is more direct, with individual justices actually responding directly to public opinion.  Whatever the mechanism and motivation, however, this line of reasoning suggests that the evolution of Court doctrine regarding gay marriage is not an instance of the Court bucking majority opinion to protect the rights of a minority class, but in fact is characteristic of how the Court’s legal interpretations respond to evolving social norms more generally. In this respect, Chief Justice Roberts is right – yesterday’s decision was not about the Constitution, at least not directly. As Dahl writes, “[T]he court cannot act strictly as a legal institution. It must… choose among controversial alternatives of public policy by appealing to at least some criteria on questions of fact and value that cannot be found in or deduced from precedent, statute and the Constitution.” And so it seems to be with the Court’s evolving rulings regarding gay rights – an evolution that seems driven not by legal precedent or doctrine so much as by changing public mores.

My interpretation may prove troubling to those who believe the Court’s function in the Madisonian system of shared powers is not to be a democratic institution, but instead is to check the excesses of legislative majorities. On the other hand, it may comfort those (like Chief Justice Roberts!) who complain that the Court is too willing to issue rulings on controversial matters that are better left to the people to resolve, working through their elected representatives. My response is that in most instances, the Court interjects itself into debates only when it is reasonably persuaded that public opinion has begun to crystallize. When it comes to gay marriage, the reality is that there has been a sea change in attitudes since Congress passed the Defense of Marriage Act in 1996, so that by the time the Court issued its ruling yesterday, it was increasingly hard to argue, as the four justices in the minority in yesterday’s decision would have us believe, that the Court decision short-circuited an ongoing debate.  Instead, as Scalia foresaw back in 2003 in his dissent in the Lawrence case, the Court’s ruling then striking down the Texas anti-sodomy law practically guaranteed that it would find a constitutional basis for same-sex marriage sooner or later. But it would be another decade before the Court, finally persuaded regarding the direction of public opinion, chose to take that historic step.  It did so in concert with evolving public opinion on the matter, as reflected in this Pew chart.

It indicates a dramatic growth across all generations during the last decade in support for same-sex marriage. Indeed, 37 states and the District of Columbia had already ratified same sex marriage prior to yesterday’s ruling.  If the Court hoped to get on the train of public opinion before it left the station, yesterday’s ruling was almost inevitable.

As is often the case, then, the Court’s intervention into a political debate did not likely change the outcome so much as provide constitutional cover for a result toward which the national conversation was already headed. In so doing, it insured that the Court would remain a relevant political player, but not in a way that jeopardized its legitimacy to articulate bedrock values. To be sure, providing a legal foundation to justify and explain a political outcome is not an insignificant role – by providing a constitutional imprimatur, it puts popular sentiment on a more enduring basis. But a process that ratifies a democratic outcome, rather than determines it, is also less controversial, and perhaps more reassuring, to those who worry about the Court’s anti-democratic tendencies. In instances in which it lacks strong popular support, conversely, the Court is not likely to move social policy on its own. While not the sign of “the least dangerous branch”, it does suggest it is not nearly as threatening as its harshest critics contend in the aftermath of yesterday’s decision. In this respect, I think Dahl had it correct when he concluded his study of the Court by writing, “[I]t is doubtful that the fundamental conditions of liberty in this country have been altered by more than a hair’s breadth as a result of these [Court] decisions. However, let us give the Court its due: it is little enough.” So it is.


  1. Amen, brother!

    But I think that you underestimate the importance of the Court’s action in the Brown case. In rejecting the separate but equal doctrine the Court put the symbolic weight of the Constitution and of the Law behind a new view of race relations, and provided a rallying cry that black activists could use to shape their tactics and put those defending segregation at a moral disadvantage in the battle for public opinion. Of course Brown could not have been decided as it was if WW II and events such as the battle at the 1948 convention over a civil rights plank had not occurred. My point is that while the Court often reflects political reality its actions sometimes move ahead of the changing zeitgeist.

  2. My impression is that you are right about the political nature of the SCotUS. But I have some questions with regards to that: to what extent do you feel that this is the result of a legislative process and/or constitutional framework that is unable to deliver change in response to shifts in public opinion over time? To what extent is it the result of nominated judges being vetted by a system that values their judicial activism and predictable ideological leanings more than the rigour of their logic or their jurispudential consistency? And to what extent do other branches of government want the Supreme Court to exercise political power? In other words, to what extent is the Court diving into a power vacuum surrounding constitutional amendment and to what extent is it being sucked in? Why has the void not been filled in other ways?

    Also, is it inevitable in the American separation of powers that the most fundamental issues (those pertaining to the constitution) are decided by the branch that is least representative, accountable and has the weakest, if any, public mandate? Is it the most desirable outcome that the notably fickle and capricious Justice Kennedy (in both a political and jurispudential sense) is the adjudicator and bellweather of the nation’s conscience?

    On a separate note, the Court decision to hear the case had, on face value, less to do with the desire to attend to changing public opinion than with an urgent need to resolve contradictory interpretations by lower courts. The ruling by the circuit court in Obergefell contradicted earlier rulings by other circuit courts that effectively legalised gay marriage elsewhere. In these circumstances of almost direct contradiction, it is unheard of that the Supreme Court would not clarify its interpretation of the constitution. In other words, its hand was forced by the 6th Circuit Court going against interpretation prevailing in the other same-sex marriage cases.

  3. Peter,

    You have raised a number of very thoughtful questions that deserve a more complete answer than I can possibly give in a comment on a comment! But let me give it a shot. To begin, rather than filling a vacuum, I would suggest that the Court was partly motivated to step in precisely because the vacuum was already being filled both by state courts and, to a lesser extent, by the state legislative processes. In short, the Court interjected itself into a process that already was well underway. Now, you may be right that it had no choice given the conflicting lower-court rulings, but I suspect in the absence of that conflict the Court would have found another way to jump on the same-sex train before it left the station. As for Kennedy’s role as the swing vote – admittedly it would have been far better for legal purists if the Court was of one mind on this (and other issues). But that is partly my point – its decisions reflect the political values of the Court’s members, and those values in turn are a reflection of the democratic process by which the justices are nominated and confirmed. That process doesn’t always yield a unified court. Yes, the Court is the least accountable branch – but that doesn’t mean it is totally unaccountable to public opinion, which was my general point. And there is something to be said for the argument that it should at least be somewhat shielded from direct popular intervention. The key, I think, is to make it able to respond to durable, widely-held sentiments held by the public while still able to resist momentary passions that may conflict with constitutional values. In practice, finding that sweet spot is perhaps more art than science, and reasonable people can disagree regarding how often it does so.

  4. Dear Matt,
    Thanks for that very full and interesting account of the background to the Court’s same sex marriage decision of yesterday.

    While I agree with your general point about the Court’s sensitivity to public opinion— and many of the justices accept a version of such a view as
    the best way to interpret the substantive liberty that they find in the due process clauses—I do think you overlooked one important element in the
    change in public opinion. I refer to the action of state high courts, from Massachusetts in 2003 (and even from Hawaii in 1996), to
    Interpret their constitutions to require same sex marriage. The Wall Street Journal has a chart in today’s paper (A6) showing that only eleven states had
    opted for same sex marriage via the democratic process; in all the other states the resolution was by court decisions, first state and then federal courts.

    I think you have to consider the extent to which these judicial decisions may have caused some people to accept an outcome that they might not have voted for or supported if the courts had said, as some did, that the matter was for the people or their legislatures to decide. The school desegregation issue did not really allow for such a choice after Brown.

    I am preparing a final chapter on this for my book. I thank you for reminding me of the importance of the view that the Supreme Court follows public sentiment.


  5. Bob,

    I don’t disagree! We can quibble regarding whether the court is typically ratifying or moving ahead of the “changing zeitgest” – in the Brown case, I agree with you that it was slightly ahead, and that its action provided a constitutional peg on which to hang a desegregation policy. But I guess my question is whether the Brown decision accelerated the process at all. Put another way – absence subsequent legislation and action by elected officials, how much would Brown have accomplished? I’m not sure.

  6. Murray – Thanks for the thoughtful response. You are quite right to remind me that the state and lower courts were instrumental in pushing this process along – even in the face of sometimes strong public opposition. By my count – and you know this data better than I! – 8 states enacted same-sex marriage via popular vote or legislation, while 26 required judicial action. While I alluded to this in my response to Peter above, I should have been far more explicit in the original post by what I meant by democratic process. I confess that I have not studied which of those rulings came from state courts that are elected or subject to recall votes or otherwise are not fully insulated from public pressure, but it would be an interesting research question! But certainly the polling data indicates that public support for gay marriage was trending up, although how much the state and lower-court decisions contributed to this is hard to say. You are far more of an expert on this than I, which is why I am looking forward to reading your book on the topic!

  7. I find it interesting that, in the above discussion, public opinion seems to be much more important than interpreting the Constitution. What does polling data have to do with calling balls and strikes?

  8. Jack,

    If you have been watching the Red Sox games you’ll know that the definition of the strike zone has been changed. Rumor has it that it has been widened to increase the pace of the game – a concession to public opinion! Roberts, alas, has been hoisted on his own petard…..

    Seriously, that’s Dahl’s point – there can be no interpretation of the Constitution without some political reference point – so why not majority opinion? Or do you agree with Scalia that the Constitution means only what it says, and nothing else?

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