Do Judges Really Subvert Popular Will?

For the second time in as many weeks, conservative pundits like Cal Thomas and Robert Knight have spoken out against “activist judges flouting public opinion.” First it was a federal judge in San Francisco who undermined democracy by issuing a preliminary injunction against enforcement of California’s Proposition 209. Next a state judge in Hawaii held that a law preventing same sex marriages violates the Equal Protection clause of the Hawaiian constitution.

Now, I am a progressive on most issues, and agree with the ruling in the Hawaii case. I admit, however, that I voted (though agonizingly) in favor of Proposition 209, and so was disappointed at the federal court’s action. I also concede that the conservatives are correct in one sense of their claim that such judicial actions undercut democracy. A single judge (or panel of judges) invalidating the will of the majority or its representatives poses what Alexander Bickel called “the countermajoritarian difficulty.” Nonetheless, I maintain that the conservatives’ claim oversimplifies a complex constitutional scheme.

To begin, constitutional rulings by judges can be invalidated through the amendment process. The point, however, is that when constitutional judges truly offend the popular will, they can be reversed.

Beyond the amendment process, however, the conservatives’ claim oversimplifies things because there is more to democracy than majority rule. An independent judiciary passing on the validity of an ordinary law in light of constitutional values is one of the cornerstones and safeguards of modern democracy. In the two cases cited, for example, equality as embodied to some degree in the equal protection clauses of the U.S. and state constitutions is a core democratic value.

Further, though they advance democracy in some ways, guarantees like equal protection and freedom of speech are largely not for the protection of the majority, which can protect itself through the political process. They are for the protection of unpopular minorities.

The system of government established by our constitution is thus no simple democracy, and for good reasons. The Constitution framers, to whom conservatives routinely defer on these matters, were inescapably committed to popular control in some form, yet were afraid of mob rule. Thus they fixed upon a mixed form of government in which significantly anti-democratic elements like constitutional review by judges were to offset and stabilize democratic elements like voting and popular representation.

Even assuming that “the people’s will” is the paramount democratic value, further, one wonders how committed the conservatives really are to that value. If a duly enacted law were to forbid wealthy corporations from engaging in certain kinds of advertising, would the conservatives argue that a court should not hear a corporation’s 1st Amendment challenge since the law might be struck down? Probably not.

As this suggests, many conservatives have little credibility when championing democratic values, and often do so only when it suits their political purposes. For example, conservatives often oppose greater public funds for child care, job training and education, even though such programs promote democracy by allowing people to obtain the skills for employment and political participation.