I agree with Barney Brantingham that same sex couples should be able to marry. I frequently share his frustration with the reasoning of the current majority of the U.S. Supreme Court. Where I part ways is the complaint that the United States Supreme Court is not a democratic institution because of lifetime appointments and deliberations in private.
The lifetime appointments of Supreme Court justices are mandated by the U.S. Constitution — a democratically crafted document that can be democratically amended, albeit with great difficulty. What alternative method is preferable? Shall we elect U.S. Supreme Court judges as they do for many state Supreme Courts?
Consider a U.S. Supreme Court election like the one in West Virginia. There, a party to a case pending before the state Supreme Court contributed $3 million to the campaign of a successful Supreme Court candidate, who then was part of the 3-2 majority that overturned a $50 million jury verdict against that very party who was so generous to his campaign. That’s democracy in action in the courts.
Of course, the U.S. Chief Justice has stated that spending large sums of money in connection with elections or garnering influence over elected officials does not give rise to “quid pro quo corruption” (McCutcheon v. Fed. Election Comm’n). Whether that statement demonstrates naïveté or intellectual dishonesty, one would think it would disqualify the author from being a judge, let alone the preeminent judge in the land. In any event, I think Barney and I – as former Chicagoans – would agree that spending $3 million on a judge’s campaign to save $50 million constitutes both a good deal and corruption.
And before we throw out the idea of lifetime appointments for federal judges, think of what democracy has wrought in the field of same sex marriage. Of the 36 jurisdictions that issue same sex marriage licenses, only 12 do so as a result of the “democratic” process of legislation or initiative. Fully half (18), including California, do so as a result of the decisions of federal judges overturning state bans on same sex marriage. (California later passed a law to the same effect.) Another six were told to do so by state courts. Federal judges in six other states have overturned bans, but those decisions are stayed. Two other states — Kansas and Alabama — are simply defying federal court decisions. All of those federal judges are appointed for life. They all deliberate in private.
Federal courts, far from defying overwhelming popular support for same sex marriage, have led the charge. And I would argue they do so, in part, because of their independence from the vagaries of what passes for democratic elections (or even political reappointment) in this day of unlimited money in politics.
Barney, be careful what you wish for.
Tom Hinshaw is an attorney, actor, and former president of the Santa Barbara County Bar Association.