The Prop Eight Overturn


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Whenever a favorable-to-progressives judicial ruling come down, the concern trolls come out of the woodwork to fret about the backlash. So in the wake of a win for the left on Proposition 8 in California, I wanted to go on record alongside Ryan as thinking such concerns are, when genuine, wildly overblown.

The American political system has a lot of features that differentiate it from most modern liberal democracies. These features include an unusually large number of veto points and also a greatly empowered federal judiciary. I’m not a huge fan of either feature*, but the system is what it is and the interplay between the two means that responsible political advocates will always want to use all the levers at their disposal—including litigation—in order to get their way. Once laws are on the books, overturning them is generally an extremely cumbersome process. Merely persuading most people that you’re right doesn’t do the trick. And the system doesn’t really function in a “majoritarian” way at any level so the non-majoritarian aspects of seeking policy objectives through the courts don’t differentiate them from anything else.

Which is simply to say that legal details aside (I’m not a lawyer, but you can play one on TV by reading the decision) this seems like a clear victory for moral justice and nobody has any reason to have mixed feelings about it.

My distaste for the filibuster and bicameral state legislatures is, I think, well known. In terms of judicial review, I think something like Canada’s Section 33 is better and more honest than the American way of absolute judicial supremacy.