Glenn Greenwald makes the obvious point about Ben Wittes’ critique of the California gay marriage decision: for all intents and purposes, there’s no argument in it. The shallow, bumper-sticker versions of democracy Wittes invokes — that the decision represents the “undermining of the right of people to govern themselves” — prove too much unless you believe that liberal democracy means nothing but simple majoritarianism, which virtually nobody does and at any rate certainly isn’t the constitutional logic of any government in the United States. If taken seriously, these claims are equally applicable against Brown and Loving. Wittes builds his argument around the assertion that arbitrary discrimination on the basis of race is just different than arbitrary discrimination on the basis of sexual orientation. Maybe it is, but he just asserts it repeatedly without defending it. The fact that a majority of Californians may oppose gay marriage is irrelevant to this distinction. Citizens and public officials in most of the states where segregation was ruled unconstitutional were far more committed to apartheid than California is to bans on same-sex marriage. And yet, as Greenwald says, Wittes says nothing about the court’s opinion at all; he doesn’t even begin to make the case that it was poorly crafted or an implausible reading of the California constitution.
This brings up to another point, which is that even if the democratic support for provisions is relevant to construing ambiguous constitutional provisions, we also have to consider what constitutes democratic support. Shouldn’t the fact that a majority of state legislators and the state’s governor almost certainly support the court’s ruling at least be considered when decrying “accretion of power to courts”? But Wittes ignores this, just as suddenly a supermajority in the Massachusetts legislature affirming Goodridge was not longer enough, but instead democratic legitimacy required not just representative majoritarianism but plebiscitarianism. We’ve seen similar shell games about democratic legitimacy from Wittes before: the incredibly shoddy and unprincipled Bush v. Gore is legitimate because it didn’t affect public opinion about the court, but public support for Roe v. Wade is irrelevant to that decision’s “legitimacy problem.” Other than his remarkably consistent conviction that decisions that piss of conservatives are bad and decisions that piss off liberals are good, I frankly don’t know what the content of his standards regarding the democratic legitimacy of judicial review is.