Millions of Americans (or thousands of journalists, wonks, and wags) are sitting on pins and needles right now, waiting for the Court’s determination: Will the world’s only superpower decree that same-sex marriage is a constitutional right? Other decrees came down this week—ranging from lawn-signs to Spider-man to Obamacare—that merely whetted the appetite of the twenty-four hour news cycle.
Almost twenty years ago, First Things published a series of essays documenting the decline of the democratic process. Robert Bork bemoaned the oligarchy of the judiciary. Hadley Arkes felt the tremors of the same-sex marriage movement before it picked up popular steam. Robert George observed that judicial interpretation of the Constitution had gone beyond the idea of the common good and the natural law, thus calling into question the American democratic project.
The primary difference two decades later is not one of substance but of acceleration. The problems of the 90s are greater today than ever. What then can we say as we nervously await the decision of the Supreme Court on these central issues? In many ways, it doesn’t matter what the ultimate outcomes of the decisions are. The very fact that crucial decisions between camps with diametrically opposed views of central debates are being determined by the Supreme Court reveals that our representational democracy has suffered a critical wound.
The United States of America was established as a nation of laws, undergirded by the framework of the Constitution. The citizens of this country are endowed with the freedom and responsibility to vote for representatives who write and vote on laws. Every generation in America has had fundamental questions about government and rights, and the genius of our system is a peaceful mechanism to deal with them as they arise.
Today, though, instead of attempting to persuade one’s fellow citizen, activists of all stripes are circumventing the democratic republic—the fundamental structure of this country—and are trying their luck with the Supreme Legislators. This “judicialocracy” fails to satisfy either side. It leaves the losing party feeling like they have no more options besides interminable legal fights. Whereas unpopular decisions from the legislative and executive branches are answerable to public elections every few years, there is no realistic recourse for countering the Supreme Court.
A common theme developed in the essays in the End of Democracy symposium: Either the situation of the judicial takeover of democracy must be radically reformed, or conscientious objectors must learn how to disobey the new system peacefully, recognizing that democracy had been replaced by despotism.
Dominic Bouck, O.P., is a Dominican brother of the Province of St. Joseph and a summer intern at First Things.
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