I pulled the jackson quote in response to Donna’s theoretical scenario: the court uses its power of being the ultimate arbiter of the law to rule prop 8 unconstitutional. in which case the executive could always pull the trigger on its power to enforce. and since power comes from the barrel of a gun, we know who wins.

so ultimately legitimacy matters (as jill and you point out) if for no other reason than for the court to flaunt its power (not even give an opinion, go beyond plausible interpretations to simply legislating) is a losing game, considering the power of the executive and legislative branches. it almost came to that with scotus and fdr during the court packing standoff.

I’m pretty sure that defiance of the courts isn’t what you’re advocating, Manju (guessing you were being sarcastic), just pointing out the historical context. If we defy it on something like this, then the other side has tacit permission to defy it on something like Worcester v. Georgia.

Yes, this is central to liberal democracy. The bill of rights was deigned in part to address this conundrum: tyranny of the majority.

I think a solution is found within the 14th amendment, the due process and equal protection clauses plausibly making a ban on gay marriage unconstitutional, just like it did for interracial ones.

Well, as Andrew Jackson said: “The Court has made its decision, now let THEM enforce it”

Look: if the courts don’t have legitimacy, the whole system crumbles. If courts step out of their role as artibrators of the law — not law-makers — they lose legitimacy. I often think that “judicial activism” arguments are silly, especially in the context of same-sex marriage, because most of the marriage cases address civil rights and equality. This case wasn’t about that; it was about the California referendum system. For the court to overturn Prop 8, it would have had to strike a blow to that system. There was no realistic way to do that within the color of the law. I don’t like it, but there it is.

In that sense the court could do whatever it thought it could get away with, it’s only concerns being consequences and the chance of being overturned. Realistically the judges in question likely wouldn’t face impeachment if they engaged in a little judicial activism and even if they did they wouldn’t have too much trouble finding a well compensated position somewhere given that their firing would be seen by many as martyrdom. The morality and ethics of that kind of behavior can be debated until the end of time, but I think the underlying opportunity can’t really be denied. Sure, the role of judges is to interpret the law to the best of their ability (without that the rule of law doesn’t amount to much), but on the ground that isn’t always the case.

Stating that the court couldn’t do anything to stop prop 8 is bullshit. They have the power to declare any law OR even a constitutional amendment as “unconstitutional” at any time they like. They arent even required to give a reason. Their word is the law.

Uh… no, not the way it works.