The Court on Gay Marriage

Last week, the U.S. Supreme Court declined to hear appeals from five states that sought to ban gay marriage.  The Court also declined to explain why.  This led supporters of gay marriage to hail the Court's non-action.  But not everyone agreed that this was a good thing.

Critics made the obvious arguments.  According to Professor John C. Eastman, it was “beyond preposterous” for federal courts to define marriage.  This was a question that must be left to the political process.  But what would he make of the Court's view, expressed in 1967, that "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"? Or the recognition that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."  The case was Loving v. Virginia.  

I also wonder what he might say about the Supreme Court short-circuiting the political process in Shelby County.  I wonder.

Progressives also were not unanimous in their approval.  One argument in particular caught my attention.  This was from Slate's Dahlia Lithwick:

Regardless of the answers, the court should not be in the business of gingerly surfing public opinion until it’s safe enough to ride that wave into shore. And by waiting (or even talking publicly about thinking about waiting) for the majority of Americans to climb on board before ruling, the court is failing at its most vital task: protecting civil liberties from majorities not inclined to wait. The court hardly becomes more legitimate by suggesting that it will decisively do the right thing once it’s been done. And as of Monday, it’s been done.

 Lithwick is asking the Court to play the role of countermajoritarian hero. But we must ask, has the Court ever played this role in American history?  This is a game I often play with my students: think of a case when the Court in fact played this role, and let's think about how it was possible.  Brown is often the first answer they think of, and it is often the only one.  They don't often think of Brown II, or Naim v. Naim, or Eisenhower and the Little Rock Nine, or the March on Washington, or Freedom Summer.  rather, they think of Brown in a vacuum.  And that is not only misguided, but it is also a mythology of the Court that we should not foster.

Think of this: could we view the Court inevitable reconsideration of the Second Reconstruction as an instance when the Court will be performing "its most vital task"?  I suspect that Professor Eastman would encourage the Court to do precisely that. And if so, what does that tell us about the Court's role?  Could our perceptions be clouded by nothing as crass as whose ox is being gored?