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As the Supreme Court nears the end of its term, the big decisions we are still waiting for concern race and marriage. These decisions offer the court an opportunity to exercise an unwonted self-restraint.
In two cases, the court is judging how far governments may go to rectify past discrimination against blacks and foster racial diversity. In two other cases, the court is asking whether governments are unconstitutionally discriminating against gays and lesbians by treating marriage as the union of a man and a woman.
Most liberals want the court eventually to rule that all states and the federal government must recognize same-sex marriage — even if legislators and citizens voting on ballot initiatives disagree. In the race cases, they want the court to defer to state universities and Congress.
Most conservatives take the opposite view on all of these cases. They want the court to let legislators and citizens decide whether governments should recognize same-sex marriages. But they don’t believe state universities should be able to provide preferential treatment to minority applicants. And they don’t think Congress should be allowed to keep treating the states and localities that were the worst violators of voting rights during the 1960s as though they were still especially suspect.
What the court should do is show deference in all these cases, which means siding with the conservatives on marriage and with the liberals on voting rights.
There are, of course, occasions when the court has the duty to overturn democratically enacted laws. In those instances, the court doesn’t disregard the public’s will. Rather it sets aside the public’s transient will, as expressed in a law, in favor of its durable will, as expressed in the Constitution. The public’s ratification of the constitutional provision involved in the case is what makes the court’s action legitimate.
We can ask a two-part question, then, that serves as a rough-and-ready guide to when the court should impose a policy. Did the people, by ratifying the Constitution or an amendment, mean to adopt that policy? Or did they mean to give the courts the power to force the adoption of the policy? If the answer to both questions is no, there should be a strong presumption against judicial intervention.
Nobody thinks the public meant to recognize same-sex marriage by ratifying the 14th Amendment, or to give judges the power to settle the issue. It’s the same with voting rights. The 15th Amendment gives Congress the power to enforce the right to vote “by appropriate legislation.” Conservatives say some parts of the Voting Rights Act are no longer appropriate. But nobody has offered any evidence that the ratifying public meant that courts should second-guess what Congress found appropriate.
Any defensible account of the proper role of the judiciary has to distinguish between what a conscientious judge does and what a conscientious legislator does, with the latter having the scope to take a wider range of considerations into account when weighing a law. In both the voting-rights and the marriage case, though, there is a temptation to erase that difference. A court that tries to determine whether all the provisions of the Voting Rights Act are “appropriate” to today’s circumstances is simply replicating the lawmaker’s task.
In the marriage case, too, the main arguments aired in court have been about judgments that the Constitution appears to leave to Congress: What is the purpose of having a public policy of marriage? And what kind of marriage policy best serves that purpose? At an earlier stage of one of the cases, a federal judge even based his ruling partly on his findings about the psychological effects that different marriage policies have on adults and children. The public didn’t put answers to these questions into the Constitution by ratifying the 14th Amendment, or mean to hand them to judges to decide.
And what about the case of preferential-admissions decisions at state universities? On that one, the court doesn’t need to decide whether liberals or conservatives should prevail on any constitutional question. The Civil Rights Act of 1964 mandates that nobody be subject to racial discrimination “under any program or activity receiving Federal financial assistance,” which covers almost all universities. The court should defer to that statute, which would seem to bar preferential treatment for racial minorities.
People who want to change the statute to allow such treatment have a way forward, as do people who want to see governments recognize same-sex marriage and those who want the Voting Rights Act modified. They should all go to the same place to make their case: the legislature.
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