Due Deference

Over at the League, Mark Thompson (an actual lawyer!) and I published a pretty interesting dialogue on judicial legitimacy, cultural change, and originalism in the wake of the Iowa gay marriage ruling:

The courts have a certain amount of judicial capital – i.e. public trust in the courts as an institution. This gives them the credibility to enforce unpopular laws (releasing guilty criminals on technicalities, for example). Court capital, however, is extremely sensitive to public perception, and if it is completely depleted, popularly elected branches of government will take advantage of this erosion of public trust by compromising judicial independence – through court-stripping, enacting judicial term limits, slashing the courts’ budget etc. etc.- thereby undermining the judiciary’s ability to enforce constitutional law.

As a pragmatic issue, I think the courts need to be cognizant of their public legitimacy precisely because a loss of credibility could undermine judicial independence. The law isn’t solely enforced or implemented by the courts – they require the implicit consent of the public, the legislature, law enforcement, as well as any number of other bodies. In other words, it makes a whole lot of sense for the courts to not only pay attention to public opinion, but to carefully pick their battles in order to preserve judicial independence.

Check out the whole thing here.


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