‘DADT’ and Proposition 8: The Role of the People’s Will


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Constitutional scholars love to talk about something called "the counter-majoritarian difficulty." It is a simple problem that plagues any democratic or republican form of government that has a judiciary that is empowered to judge the constitutionality of legislation passed by an elected legislature. The counter-majoritarian difficulty asks how can a society organized around the will of the people, manifested through their elected representatives, tolerate an unelected judiciary that strikes down legislation written by those representatives? We appoint our federal judges to life terms (for good behavior) and hand them the keys to the vault. We elect our members of Congress, they pass bills into law, our elected president signs them, but still, an unelected judge can stand in the way. How is that democratic, just or fair?

Prop8 There is, of course, a simple answer to this problem, first posed by a famous Yalie named Alexander Bickel. While there is an inherent tension between popular democracy and judicial review (the name given to the power of courts to review the constitutionality of legislation), the allocation of judicial review power to the courts expresses what we know to be a judge's best skill. Judges analyze a law's constitutionality outside the political realm, and they do so dispassionately, without regard for party, ideology and personal preference. At least, they do so in theory. Think of what economists call comparative advantage -- a person, group or country focuses on what they do best or most efficiently. Well, judges are best at determining the constitutionality of laws; legislatures are best at reflecting the will of the people. Both have to be done in any orderly society, so we insulate judges from politics and ensure that they can make decisions independent of the popular will.

Some of us may have missed it, but the principles animating the counter-majoritarian difficulty are at play in the two hottest gay rights issues of the day: the repeal of Don't Ask, Don't Tell and the challenge to California's ban on marriage equality in the Perry case. Today, I'd like to discuss the role of the popular will in our quest for equal rights. I argue that the popular will plays a role, but in exactly the opposite way that it should.

Continue reading "The Role of the People's Will" AFTER THE JUMP...

Popular will is relevant to the debate over repealing Don't Ask, Don't Tell in three ways: popular polling, the military survey and Congress. Every poll shows that at least 67 percent of Americans favor repeal of Don't Ask, Don't Tell. Some polls have that number closer to 75 percent. This is a direct reflection of the will of the people.

Sc The Defense Department conducted a survey of military members and their families and asked them their views about the repeal of DADT, whether open service would affect unit cohesion and military readiness and how they would react to repeal. This reflects the popular will of a certain subset of the population deemed to be directly affected by repeal.

And, finally, the debate over repeal is occurring in Congress, the republican manifestation of the will of the people through voting and elections.

Popular will is reflected in the Prop 8 case in three very different ways: popular polling, the Prop 8 initiative and the scope of the district court's ruling and any future Ninth Circuit ruling. Here is the classic counter-majoritarian difficulty.

Polls show growing support for marriage equality, but percentages hover around 45 to 49 percent. The size of that group has grown considerably since 1993, but marriage equality generally still fails to command majority support.

The Perry case is about whether a voter-approved referendum, which passed with approximately 53 percent of the vote, should be overturned because it contradicts the federal Constitution. The prospect that this could happen is precisely what those worried about the counter-majoritarian difficulty do not want to happen.

Finally, the scope of the ruling affects different groups of people. If the ruling only affects two counties in California — as David Boies suggested at the hearing — the problem is minor compared to a the prospect of a Ninth Circuit ruling that could potentially affect the entire Ninth Circuit. Admittedly, that is highly unlikely and of dubious legal merit; but, the point remains that any decision will affect different numbers of people.

Why should the will of the people matter? Assuming the popular will has a role, is it necessarily the case that the popular will means more to the repeal of DADT, given that the debate is taking place in Congress, than it does to the overturning of Prop 8, given that the discussion is taking place in a court of law? I think the popular will matters, but not in the way you might expect.

The Prop 8 case gives us the classic counter-majoritarian difficulty. The case asks a court to reject what a majority of Californians voted for in 2008. You would expect, then, that Charles Cooper, representing the proponents of Prop 8, would return to this theme often. And, he did, five times at oral argument before the Ninth Circuit.

You would also expect that this would be irrelevant to gay rights advocates. Admittedly, we did not hear any discussion of polling data from David Boies and Ted Olson; but, we do hear a lot about how marriage equality has support of a majority of Californians and is growing in popularity nationwide.

The question is: Should this matter for either side of the debate? My answer is it shouldn't, but it does. Matters of constitutional rights are meant to be decided by unelected judges insulated from politics for a reason — their decisions are independent of what the people want. When the Warren Court decided Brown v. Board of Education, the Court may not have been alone on the side of integration, but certainly had about half the country's virulent opposition to contend with.

But, decisions like Brown are rare. Much more common are decisions like Loving v. Virginia, which ended anti-miscegenation laws, and Griswold v. Connecticut, which ended bans on contraceptives for unmarried individuals. These important decisions reflected the will of the people in that by the time the court decided Loving, bans on mixed race marriages had been on their way out for years and had been scarcely enforced. That same was true for bans on contraceptives at issue in Griswold. Connecticut's law was "outdated" and rarely enforced, even according to the state defenders of the statute.

Federal courts are much more willing to wield the sword of judicial review when an aerial bombing campaign has already weakened the enemy. It was easy to decide Loving and Griswold; Brown took courage and daring. But, that kind of courage is not always a good idea. Our courts need a public willing to accept their credibility, lest they risk their decisions being nullified by a sanguine public. The Warren Court took a big risk in Brown — it played Roulette with the credibility of the Court in the face of a population ready to say, "screw you." It won out, but mostly due to the Eisenhower and Kennedy administrations' willingness to enforce the decision at the point of the National Guard's bayonet.

So, I argue that where you would expect popular opinion not to matter — a court's determination of our constitutional rights — popular opinion tends to matter a great deal. In theory, it shouldn't, but let's leave the theoretical world to academics, theoretical physicists and The Chronicles of Narnia.

Soldier As for the debate over repeal of DADT, you would expect that popular will would matter most here; this is, after all, a debate in Congress. But, I argue that it is Congress that has made the popular will almost irrelevant. 

Polls that show vast majorities of Americans support repeal of DADT are great background noise, but it is not clear that they influence anyone other than those progressive politicians who would support repeal no matter what. These majorities have existed for years, but it took a Democratic Congress and a Democratic president to get the issue to the floor. The failure of Republican congresses to raise the issue of repeal despite huge majorities favoring repeal means that something else is going on, or, at least, some other impetus was needed to get repeal off the ground.

Even in Democratic Washington, it took a report about the popular will of service members to push conservative members of the caucus to support repeal. This version of the popular will gave members certain political cover and allowed these wavering politicians to say to voters: "I only support this assuming it is okay with our armed forces." But, that position subjects the rights of one class of citizens to the popular will of an entirely different class of citizens, both minorities in the strictest sense of the word (gays and those who serve in the military are both subsets of the larger population). It is not clear how democratic values are preserved by making support for repeal of a discriminatory law against one minority contingent upon the support of another minority.

And, as many commentators on the left have noted with great gusto, repeal of DADT does not even seem possible in a Democratic Congress. Once again, the epicenter of our political universe is not reflecting the will of vast majorities of the country, which calls into question the weight or important of those vast majorities in the first place.

My argument is that popular will is almost irrelevant in a Congress where 40 senators can stop pretty much anything from happening. Popular will may have changed party control in 2006 and again (in the House) in 2010, but DADT is still with us. And, soliciting the views of military members seemed like a good idea on the surface — no one wants to jeopardize the effectiveness of our armed forces. But, it is, at a minimum, undemocratic to make service members' views determinative when it comes to repeal. On the repeal of DADT, the Senate is acting like the unelected judge in the counter-majoritarian difficulty — it has taken the will of the people and the will of the military and rejected them both.

What does this mean for the counter-majoritarian difficulty? If courts are more likely to overturn laws when they have the popular will at their backs and the Senate fails to act despite the popular will at their backs, there is no counter-majoritarian difficulty. The unelected judiciary is arguably more reflective of popular will, even though it need not and often should not be, than the Senate.

Do you agree with me? Has our system been turned on its head? Or, does the counter-majoritarian difficulty still exist in practice?