Supreme Court Says No Shortcuts

Conservatives need to stop depending on the courts to save America.

The reaction to the Supreme Court's latest rulings regarding homosexual "marriage" are, well, pretty much what one would expect.  The Democrat-media complex are giving it a ticker-tape treatment worthy of the emancipation of the slaves.  Conservatives, when they're not warning that the entire country is liable at any moment to drop bodily into hellfire, are considering this as still more evidence that the country and their causes are lost.

Which they may very well be - but not because of the Supreme Court.  Yes, occasionally the Supreme Court imposes a leftist result on a largely unwilling populace, as with the notorious Roe v. Wade decision that entrenched abortion as somehow a constitutional right.  The Court occasionally even does the opposite, as when the Bush v. Gore decision put George W. Bush in the White House despite the massed pleading of the entire commentariat and leftist elites.

Most of the time, though, the Supreme Court merely follows what they view as popular opinion, leavened by a careful reading of the written law.  This is, after all, precisely what they're supposed to do.

In theory courts are not supposed to make laws, merely interpret them, and since laws are produced by elected representatives, the whole shebang follows the overall culture in the long run.  The Supreme Court rarely causes anything to happen that wasn't going to happen anyway.

When it comes to legal rulings, the devil is in the details.  When we carefully consider recent rulings in this light, the Supremes are saying something very important that we ought to listen to: There are no shortcuts.  If we want something to change politically, it needs to change via the normal political process, or not at all.

You Get What You Vote For

Let's consider the ruling on California's Proposition 8.  The result has been broadcast as a ruling in favor of homosexual "marriage", and indeed that is the result.

Neither the ruling nor the question actually before the court had anything whatsoever to do with marriage, homosexuality, or the like.  Of course the justices knew that ultimately it would, but the technical question was entirely different - one of legal process rather than substance.

Recall how the question reached the court in the first place: The people of California had used the proposition process to place a constitutional amendment banning homosexual "marriage" onto the ballot, against the desire of the legislature.  The people of California voted to approve the proposition, again contrary to the all-but-unanimous wishes of the entire political, media, financial, and judicial structure.

A homosexual judge struck down the proposition as unconstitutional on what seem to be manifestly spurious grounds.  Logically, you'd expect that decision to be appealed, but normally when a law is found unconstitutional, the government has to file the appeal - that is, to defend its own law that it's sworn to enforce.  In this case, however, the government of California was opposed to the law and had been from Day 1.  Naturally, it elected not to defend it.

The question was, if nobody in the government wants to mount a legal defense of a law passed by a vote of the people, can other representatives of the people do it instead?  The Supreme Court's answer was: No, they can't.  The only people with the legal standing to defend a law in court is the elected government, and if they don't want to, nobody can and thus no appeal is possible.

This seems on its face to raise other serious logical questions - how can the people be allowed to pass a law but not be allowed to defend it?  That's a red herring.

"The people" can't do anything except express their will at the ballot box.  "The people" can't appear in court to defend anything, unless you are in favor of trial-by-mob.  Only representatives of the people can do that.  Who are the people's representatives?  Their elected officeholders and none other.

The problem wasn't really that the ruling elites disliked Proposition 8 when the people of California wanted it passed.  The real problem is that the people of California are schizophrenic: they voted in favor of Proposition 8, while at the same time electing representatives who were vehemently opposed to it.

Personnel Is Policy

Imagine for a moment how the situation would have played out differently had the people of California been so wholeheartedly opposed to the homosexual agenda that they supported their vote for Proposition 8 with votes for conservative Republicans who also supported Proposition 8.  Obviously, that hypothetical conservative elected government would have defended the proposition in court, and probably done a far more effective job of it.

What happened was that Californians wanted to have their cake and eat it too, a desire which is not uncommon throughout America.  They wanted the tax-and-spend liberalism of California Democrat governance, the untrammeled right to abortion and fealty to teachers unions that Democrats always bring, and the whole rest of the familiar far-left nuttery we inveigh against in the pages of Scragged.  We know this because that's what they have voted for in free and fair elections over many decades.

They only differed from standard Democrat dogma in one particular: They didn't want homosexual "marriages."

Alas, representative politics does not work that way.  When you vote, you are voting for a particular person who is usually a member of a particular political party with a generally well-known platform.  You are not at a buffet where you can pick and choose which policies you like and don't like; you have to pick This Guy or That Guy, nothing else.

Now, you may say that neither of the two candidates represent your views, and for many people that's true.  There's a way to fix that: get involved in party politics at the primary level to make sure that at least one candidate meets your desires.  That's what the Tea Party has done in many states, taking over Republican party caucuses and promoting their candidates in the primary over less-conservative "establishment" sorts.  The far left has done the same in the Democrat party since the 1960s and it's worked very well for them, too.

That's a lot of work.  It takes a long time and a lot of money.  You can't change political culture or a party overnight.

This is not an accident - everything the Founders built into our system of government was specifically designed to make changes take forever and to be almost impossible without having large numbers of elected representatives in agreement.  The establishment of homosexual "marriage" has been easily predictable for twenty years by a simple look at demographic polls; this loss was just a matter of time, given the direction the country and culture have been heading over the decades.

The Road Forward - or Backward

What the Supreme Court said to conservatives is, "You keep losing on Election Day, why would you expect to win anywhere else?"  That's a perfectly legitimate, and even reasonable, message for the Court to send, and it tells us what we need to do if we really want to change anything: start getting real, solid conservatives elected to offices high and low in overwhelming numbers.

Whether we can actually do that anymore is a different question, but that's not the Court's problem.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Add Your Comment...
4000 characters remaining
Loading question...