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August 28, 2005

Overturning Court Decisions

The problem with federal court power is that there is essentially no check on their power. Once they overturn a law, it is nearly impossible to reverse that decision, since the federal constitutional amendment system is so unweldy.

At the state level, the situation for court power is dramatically different In most cases, the political system has relatively straight forward procedures for voting to reverse disfavored judicial decisions.

Take the Massachusetts gay marriage decision. While the Massachusetts Supreme Court ruled in favor of gay marriage, it would only take a majority of the legislature followed by a vote by a majority of the population to reverse that decision.

To the frustration of the proponents of banning gay marriage, the legislature doesn't appear to have the votes to overturn the court decision.

The legislature probably wouldn't have had the political will to pass gay marriage on it own, but with the court's moral argument about what equal protection means, they now have the political courage to uphold it. In some ways, this is a good model for what the judicial role should be in a democratic society and at the federal level. Courts would make clear moral statements of what rights should be under the Constitution, with legislators free to accept or reject that judicial viewpoint.

Massachusetts raises a secondary issue of whether "the people" via the referendum process should be able to reject such judicial decisions. Provisions in the state constitution specifically bar using referendums initiated outside the legislative process from to overturn judicial decisions, reserving that power to the legislature.

Which again seems like the right approach.

Many people worry that if courts lose plenary power to enforce constitutional rights, raw majoritarianism will mean the end of rights for minority groups. But the reality is that legislatures are not majoritarian, at least on every single issue, since they are subject to political bargaining. Where a minority group cares passionately about an issue and vote in elections on that basis, they can often determine policy since a majority of other voters might disagree with them but, while they'd vote against them in a referendum, that single issue doesn't effect their vote in legislative elections.

In that sense, it's always been clearer to me why legislatures are institutionally likely to protect minority rights far more than courts, which have no structural reason to reflect anything other than the elite viewpoints of the pool of people from which judges are drawn.

Posted by Nathan at August 28, 2005 01:03 PM