Editorial: Courts should be immune from populism

Editorial Board

As the United States Supreme Court sat down last week to hear oral arguments in cases concerning California’s Proposition 8, which was a state constitutional amendment to limit marriage to heterosexual couples, and the federal Defense of Marriage Act (DOMA), which did the same thing for the federal government’s purposes, many people expressed their opposition to those laws by changing their Facebook profile pictures to a pink or white equals sign on a red background.

We wonder how many of those individuals have already changed their  profile pictures to something else because they forgot the Supreme Court will not release its rulings on these cases for several more months. But mainly, we wonder how many of those individuals thought that the Supreme Court would care.

Changing one’s profile picture on a social media platform is quite possibly the most empty way of expressing support or opposition to something.

Nothing can ever replace the genuine political action that takes place between individuals. The great cultural delusion of the Digital Age seems to be that expressing ourselves on a computer network where the people we connect with are people we connect with out of choice (as opposed to, say, Congress, which is a congregation of individuals who wanted to be a member of that body but not necessarily to be a peer of people from other parties or districts), is a meaningful kind of expression. Social media can be a prelude to interaction, but is no substitute for talking with people and trying to understand and convince them.

Even without considering social media’s small ability to create actual political action, changing profile pictures to a symbol supporting same-sex marriage — and even demonstrating outside the Supreme Court building in Washington, D.C. — are not applicable to the Supreme Court’s activities.

Unlike political issues, which all have a day in the law books, justice is a timeless concept that is unchanging. Whereas law and policy, which are the result of politics, deal with problems of current events and are designed to resolve problems that may be present today but not tomorrow, judicial decisions have but one concern: whether an action was just or not. That is especially the case when the arguments in the cases about Proposition 8 and DOMA deal with marriage equality.

A court system that is insulated from current events is a good thing in that it does not allow the courts to consider expediency, or what is necessary at the present time, in their decisions. This impartiality with respect to political winds has a tendency to protect everybody. In fact, that is the Supreme Court’s job: to maintain the principles of the Constitution in the face of political opposition from Congress and perhaps even the president.

Showing support for same-sex couples can occur in many more productive ways. The first is realizing the difference between the political process of lawmaking and the legal process of judicial review. Pressing for a Supreme Court decision that has a higher regard for public support for same-sex marriage is as dangerous as leaving a matter of equality to fickle political winds that blow north one day and south the next.