Constitution Check: Will the Supreme Court be guided by polls about same-sex marriage?

Lyle Denniston

Will public opinion polls sway the Supreme Court as it considers two cases related to same-sex marriage? Lyle Denniston looks at how the court has discussed the idea of political pressures in the past.

The statement at issue:

“Every action that demonstrates that our culture is changing, and that the nation is ready for legalized gay marriage, could influence the Supreme Court in its upcoming hearings. Most legal observers believe the justices won’t want to get too far ahead of public opinion when they rule on the Defense of Marriage Act and California’s Proposition 8.”

– Greg Sargent, Washington Post columnist, in an op-ed article on March 19 commenting on a new Post-ABC poll showing that public support for same-sex marriage had reached a record high, 58 percent to 36 percent.

We checked the Constitution, and…

In 1788, when Alexander Hamilton was promoting ratification of the Constitution, he wrote in Federalist No. 78: “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority … Limitations of this kind can be  preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all laws contrary to the manifest tenor of the Constitution void.”

If public opinion polls had existed then, it seems likely that Hamilton would not have wanted them to have a controlling influence on “the courts of justice.” The concept of a truly independent judiciary proceeded–then as now–from an idealistic conception of judicial detachment from the shifting winds of politics. If a court is to have the awesome power to strike down laws passed by the people’s elected representatives, it had better not be perceived as just another politically-driven body–and polls are no more than political expressions.

That is not to say that the members of the Supreme Court, or of any other court, are to spend their working lives in a cloistered enclave, entirely oblivious to the world outside their marbled halls. Controversy enters the courthouses directly in the form of very real legal feuds that very often reflect the tensions and conflicts of a current time.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

And lawyers, in bringing cases into the courts, do not hesitate to inform the judges about how this or that lawsuit fits into the cultural trends of the day. That happened, for example, when lawyers for two same-sex couples in California filed a document in the Supreme Court last summer, as the justices were just beginning to think about getting involved in the controversy over gay marriage.

That document told the justices: “It fairly could be maintained that the question whether the states may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time.”

That, of course, was putting the matter in the most favorable light for the same-sex couples, and it might well have been understood as something of a dare to the court not to ignore a cultural (and political) environment that was said to be changing rapidly.

It is now apparent that the court, whether or not it agreed with the sentiments behind that statement, considered the issue to be significant enough to warrant the court’s review of two major cases–one on claims to marriage equality at the state level, and one on the federal level. Those cases come up for historic hearings next week, and the justices no doubt are fully aware that whatever they decide may well influence how the cultural trends move from then on.

But this will not be a decision, or decisions, guided by the latest popular poll results. This is, after all, still a court, and as such it proceeds through well-established procedures that depend upon having two or more distinct sides in a controversy fully aired, on the premise that a sharply contested argument is still the best way to lead toward sound legal judgment.

If the court does get to the heart of the constitutionality of either or both of the laws coming before it–California’s Proposition 8 or the federal Defense of Marriage Act–it will be ruling for or against the political judgment of millions of California voters on the one, and the judgment of very large majorities in Congress on the other. (There are procedural reasons why the court might not rule in a final way on either of the laws’ constitutionality, but the justices may decide not to take that way out of deciding the deeply controversial questions at issue.)

Jousting with political majorities is the stuff of judicial review, but it is not a form of political sport; rather, it is a truly daunting task that no judge will claim is easy. And it has to be carried out in a way that can lead to an outcome that has a realistic chance of being accepted as legitimate.

Here is how the court once defined the task that it now faces in the same-sex marriage cases, as it would in any other case with such high stakes for America: “The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”

Obviously, that is an aspiration that cannot be achieved simply by counting up the numbers reflected in a political poll.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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