In a word, no. The judiciary is not an exceptional, deviant institution in an otherwise pure democracy. The Constitution is pervasively countermajoritarian. It protects Americans against majority tyranny by providing that the government may act only when it has the authority to do so and by explicitly protecting individual rights.
The Kim Davis situation raises interesting questions about the meaning and practical effect of the freedom of religion. Although, for reasons that I will explain, the issue today is one of public policy, rather than constitutional law, the evolution of constitutional principles in this realm is illuminating.
The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.
Why are people willing to pay for the right to put their message on a license plate, rather than just put it on a bumper sticker? Justice Breyer suggests that it is because they want the state's endorsement of their message. The problem, though, is that this is about the state discriminating among private speakers based on whether it approves or disapproves of the message. This, the First Amendment does not permit.
Anderson's preoccupation with activism leads him to miss out on a crucial point that all defenders of limited government should be able to agree upon: The Court should make an independent determination of the constitutionality of the challenged marriage laws, rather than reflexively deferring to the political branches.
Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the political process, and sexual orientation has nothing to do with an individual's ability to perform in society.
The "conservative" justices on the Roberts Court are often passionately restrained in their interpretation of the Constitution in precisely the cases in which a more muscular form of judicial review is most appropriate -- those involving discrimination against African Americans, women, Hispanics, religious dissenters, gays and lesbians, persons accused of crime, and denial of the right to vote to minorities and the poor. In these cases, our contemporary "conservative" justices often err on the side of upholding laws that even Philip Kurland would have found unconstitutional. This is, in my view, a sad state of affairs.
What if I told you that the most pertinent social science subject -- one that affects every single one of us every single day -- is taught to only a select few? That would be absurd, right? Well, unfortunately this is no fiction. It is the state of legal knowledge in America, and it is profoundly troubling.
This week marks the 50th anniversary of the Supreme Court's decision in New York Times v. Sullivan, perhaps the most important First Amendment case in American history. In the words of the great First Amendment scholar Alexander Meiklejohn, the decision was "an occasion for dancing in the streets." Why was Sullivan so important?