FALL 2015
three departments of power” – Alexander Hamilton’s characterization of the
judiciary. Legal victories, it seems, are
meaningless without political support
when it comes to hot-topic social issues.
This simple truth partly explains
why the Supreme Court refrains from
making momentous decisions until
the general public shows reasonable
support. Its decisions are likely to be
annulled by the legislature and general public otherwise. There is also
another angle to this question of the
influence of public opinion on judicial
decisions. As the Trop Eighth Amendment ruling demonstrates, sometimes
it makes sense for the Constitution
to be informed by public opinion.
In the Obergefell majority opinion, Justice Anthony Kennedy writes:
“The nature of injustice is that we may
not always see it in our own times.
FEATURE
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to
know the extent of freedom in all of
its dimensions, and so they entrusted
to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
While it has aged astoundingly well,
the Constitution does not contain clear
answers to a number of questions unforeseen or unanswered by the Founders. This is the job of judges. Along
with precedent, close textual analysis,
and reasoned thought, public opinion is one source of information that
judges can use to make an informed
decision. There is nothing wrong with
this, as long as it is reserved for interpreting unclear clauses that can be
illuminated by public opinion. The
Eighth Amendment and Equal Pro-
tection Clause seem to fit the bill.
But all this discussion raises an important question regarding the judicial
branch. If the judiciary is influenced by
public opinion on questions of equality, then how can it possibly protect the
rights of minorities? In this case, minorities would only gain their rights when the
majority deems it acceptable. This makes
the Equal Protection Clause superfluous.
While a fascinating question, it goes
beyond the scope of this essay. It is more
relevant to examine the implication of
this whole state of affairs. If citizens expect legal change, they cannot expect it
to come from the judicial branch alone
without a corresponding social movement and change in public opinion. This
affirms the importance of non-profit advocacy organizations, many of which
played a critical part in shifting public
opinion on the issue of gay marriage.
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