I was lucky enough to have a brief chat with Congressman Barney Frank, who was visiting Hunter to teach two classes, last night. He confirmed my analysis of Massachusetts politics after Goodridge–it’s highly unlikely that a constitutional amendment to overturn the decision will pass, and it it does it will almost certainly lose.
As he pointed out, this points to a small-d democratic justification for judicial review: it can change an ossified political dynamic that makes changes to systematic injustices difficult. Courts (and this is probably a good thing) cannot effect major social changes alone, and if they’re left politically isolated they will inevitably lose, but their ability to act first can provide an important impetus. All anti-discrimination and civil rights movements face accusations that changes will produce chaos and dislocation, and it makes it very difficult to overcome entrenched interests. Brown did not, in itself, lead to significant desegregation in the Deep South (although it did matter in the border states), but without it the executive and legislative branches wouldn’t have been compelled to end Jim Crow. An when it comes to gay rights, judicial action is likely to be more effectual, because their won’t be chaos at all. (Indeed, one reason why many supporters of anti-gay discrimination are presumably pushing for a constitutional amendment is that they recognize that when some states legalize gay marriage, citizens will notice that their apocalyptic predictions are conspicuously failing to come true. Framing it as being about “activist courts” rather than the substantive outcomes is a convenient way of dodging the issue.)
And, as I’ve said before, this is why I write more about nominal “moderates” of the Reynolds/Althouse variety than outright reactionaries. When it comes to obstructing social change, people who favor change in the abstract but for whom it’s somehow never being done in the right way or at the right time are in some ways more pernicious than outright reactionaries. To the extent that judicial decisions can change the status quo in ways that make this kind of phony moderation increasingly untenable, they are a good thing.