Justice Kennedy on Judicial Intervention

In remarks at the University of Pennsylvania, Justice Anthony Kennedy lamented the state of American democracy, according to this AP report.

“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said Thursday at the University of Pennsylvania

“I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court.”

These comments strike me as somewhat odd, particularly coming from Justice Kennedy.  Unless he was talking issues like political gerrymandering, it seems to me that Justice Kennedy’s concerns are a bit misplaced, particularly in light of his own jurisprudence.

Contra Kennedy, American society does not “rely” upon the supreme Court “to resolve the most serious issues of the day.”  It is relatively rare that the Court is called on to settle a political or other dispute that cannot be resolved through ordinary political means (although the resolution might not be to some of our liking). In most cases, the Supreme Court intervenes not to help the democratic process to function, but rather to alter the way in which these questions have been resolved.  Moreover, Justice Kennedy is more prone to support such intervention than most of his colleagues, having voted to invalidate DOMA, Section 4 of the Voting Rights Act, McCain-Feingold, the PPACA, the Stolen Valor Act, and so on.  The only sense in which these questions were not “solved” before they came to the Court is in that the resolution was not that which Justice Kennedy would have preferred (or which Justice Kennedy believed is constitutionally compelled).

Take the issue of gay marriage, for example. The political process has been addressing that issue.  Numerous states have considered ballot initiatives and other measures.  For a time, the vast majority of these rejected gay marriage.  Now it appears public opinion has turned the other way and the laws are starting to change. This is precisely how the democratic process is supposed to work.  The nation did not need the Court to “resolve” this issue because the democratic process failing to “function.”  Any “need” for the Court to intervene was instead based upon constitutional limitations upon the democratic process.  Put another way, the question was not whether the U.S. is a “functioning democracy,” but whether the Constitution compels certain outcomes despite what democratic majorities have chosen. As it happens, I think the Court was correct to strike down DOMA, but not because American society is somehow incapable of resolving the debate over gay marriage through the political process.  Rather it is because one outcome of that process — the federalization of marriage law — is  incompatible with the constitution’s structure.  This sort of judicial intervention should be justified on the merits, rather than as a lamentable-but-necessary response to democratic disfunction.

UPDATE: More from Rick Garnett.

UPDATE: Kevin Drum comments (and I comment on his post).