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The Backlash Begins!


An outraged California populace has reacted to the Outrageous Judicial Activism of their unaccountable unelected state court. As you remember, the court, with only the support of other unrepresentative and undemocratic institutions such as the state legislature and governor but in the teeth of strong opposition from pundits who support social change in theory and always oppose it in practice struck down a ban on same-sex marriage. The response: California is showing if anything more support for same-sex marriage than ever. I have no idea if the initiative will pass, but I certainly don’t see much evidence of the predicted political firestorm here.

This reminds me about Jeffrey Rosen’s latest claims about the backlash that will be created by the court’s decision (via Matt Zeitlin.) My research into the subject has convinced me that claims about unique backlashes created by judicial interventions into social disputes are not supported by the relevant evidence. Admittedly, however, some claims are not easy to test empirically and are not obviously incorrect in theory, so any conclusion has to be tentative. The specific claim advanced by Rosen here, however, is just transparently wrong:

But legal reasoning isn’t irrelevant, as the backlash against Roe v. Wade shows: Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation. On that score, the California decision represents a huge opportunity for gay marriage opponents who are already trying to persuade undecided voters to overturn the decision by popular initiative.

The problem here is obvious. In general terms, the majority of the public knows virtually nothing about appellate courts, let alone the fine points of substantive due process or equal protection analysis. And, moreover, of the small group of specialists who have read and understand Roe, a substantial number believe the outcome of the case to be plausible or correct, even if they find Blackmun’s opinion deficient. After all, anyone knowledgeable enough to analyze Roe is also likely to understand that Supreme Court opinions, written by justices and clerks of varying quality and often constructed to keep divergent coalitions together, do not always give the best defense of plausible outcomes. (Brown v. Board, after all, is now our most celebrated decision although few would call it a masterpiece of legal craftsmanship or confuse Earl Warren with a deep legal mind.) Rosen’s argument is therefore implausible on its face; the evidence is unequivocal that the public evaluates Supreme Court opinions, to the extent it does so at all, on outcomes and not reasoning.

And the specific claims about Roe are no more tenable. If anti-choice activists have used Roe to shift public opinion against abortion rights, this fails to actually show up in public opinion data. Moreover, Roe is at least as popular as the underlying right it protects, while Rosen’s assertions require Roe being much less popular. And finally, I think to restate the assertion that anti-aboriton activists would have had no objection to Roe had the opinion been better crafted is to refute it. Seriously, does anybody think that had, say, the Supreme Court followed Ginsburg’s retrospective advice and grounded abortion rights in gender equality that any significant number of Roe’s opponents would have been mollified? Similarly, approximately 0% of the “Yes” vote in the upcoming referendum will be based on a strong opposition to the court’s suspect classification analysis. (It also seems to me that the majority opinion is at least as plausible and well-crafted as the boilerplate, question-begging paeans to judicial restraint in the dissents; if Rosen disagrees he doesn’t explain why.)

Finally I also note that Rosen does not substantiate his claim that Goodridge hurt Kerry in 2004 — which is not nearly as self-evident as some people think — and ignores the fact that overturning Goodridge could not get the support of even 25% of the legislature less than 5 years later. I very, very strongly doubt that the Caluifornia court damaged the Democrats in California any more than they did in Massachusetts, where supporters of same-sex marriage have fared much better than opponents and support for same-sex marriage has increased.

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