When You Don’t Have the Law or the Facts, Pound Theories of Judicial Restraint You Don’t Believe

When someone who signed Shelby County starts with the “let the people decide” routine, you know the substantive arguments are a loser.

In addition to the hand-having to a conception of judicial restraint that nobody on the current Court actually believes in, Roberts decided to try his hand at backlash theory. You may be surprised to learn that I do not find him convincing:

In a related example of sophomoric democratic theory, Chief Justice John Roberts repeated a familiar argument that for the Supreme Court to decide in favor of the rights of gays and lesbians would be counterproductive for gays and lesbians. “Closing the debate can close minds, and it will have a consequence on how this new institution is accepted,” asserted the chief justice. “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

This has been a common refrain whenever a previously disadvantaged group wins constitutional victories in the courts. The only problem is that the argument makes little sense in theory and has been proven wrong in practice. There’s no evidence that the public is more hostile to social changes produced by the courts than by legislatures. And it’s particularly strange to assert this hoary claim in the context of same-sex marriage. The courts have long played a major role in states ending marriage discrimination, which has led to predictions that the backlash would increase opposition to same-sex marriage. What happened, of course, was the opposite — public support for same-sex marriage has only increased.

Admittedly, there are a few states where a Supreme Court decision striking down bans on same-sex marriage would be unpopular. But these are also jurisdictions where, absent judicial intervention, ending marriage discrimination would probably take decades. Making gays and lesbians wait that long for their fundamental rights to be recognized in order to prove an almost certainly erroneous point about democratic procedures is not very attractive.