A judicial rainbow

What the judiciary can and cannot or should and should not review

This past week was marked with equal parts celebration and outrage over a decision made by the Supreme Court of the United States (SCOTUS) to declare laws prohibiting same-sex marriage as unconstitutional. Before the backlash spills over onto this article, let me say, I intend to address the role of an unelected judiciary in preserving civil liberties and defending marginalised persons within a society. This is not a discussion on the merits of same-sex marriage. I will leave that to the impassioned musings of Facebook users and the like.

The same-sex marriage ruling was not the only monumental decision to be churned out by SCOTUS in the past few days. The Court also ruled on fair housing and accessible healthcare, decisions affecting thousands of Americans. These decisions did not receive the visceral reaction of the same-sex marriage decision for obvious reasons, but SCOTUS came into the public eye for a champion week of liberal decision-making. Those not in agreement with SCOTUS’ rulings immediately raised question regarding the legitimacy of a non-publicly elected branch of government having the power to fundamentally alter social norms for the sake of equal rights. The dissenting opinions of Supreme Court Justices not in favour of these rulings also questioned what they termed as judicial activism and an uprooting of the democratic process.

The same-sex marriage ruling was not the only monumental decision to be churned out by SCOTUS in the past few days. The Court also ruled on fair housing and accessible healthcare, decisions affecting thousands of Americans

This raises all sorts of questions regarding the scope of what the judiciary can and cannot or should and should not review. For example, if a substantial portion of a religiously conservative nation sees marriage as between a man and a woman exclusively, then should the people or their secular government institutions determine the bounds of marriage? These sorts of questions are not exclusive to the United States, the high courts of any democratic nation, including Pakistan, may face social resistance in the face of upholding constitutional principles of equality or justice.

Brown vs Board of Education was a 1954 US Supreme Court decision that found segregation of black and white students in schools was a violation of the US Constitution’s Fourteenth Amendment that guarantees equal protection of the law. The Court found that the notion of separate but equal schooling based on racial lines was in and of itself unequal and thus violative of the Constitution. This decision came down in the face of a fierce racial divide within the United States and a similar backlash that resulted in many cases in the closure of schools rather than efforts towards desegregation. At the time, similar arguments were made by those in the majority that felt that their sense of right and wrong should be the measuring stick for governing the rights of minorities. The democratic process itself is obviously an exercise of the opinion of the majority. But does the opinion of the majority inherently establish what is legitimate and just regarding the rights of all persons?

More than sixty years later, the Brown decision is lauded as a major step towards the obvious equality of races in the eyes of the US government. Perhaps sixty years from now the decision regarding same-sex marriage will be viewed as the same, but I digress. This brings us back to the legitimacy of such decisions made, perhaps ahead of their time, by nine unelected judges. It is worth considering that those that are unelected may best defend the rights of minorities. This is because these unelected judges are only beholden to the law and not to social norms and deep-rooted prejudices.

The will of the majority is the ultimate benchmark of who will have what rights recognised. Like Brown, the same-sex marriage decision may eventually represent the normative stance of the American public and SCOTUS will have simply used its power to interpret the law as desired by the quiet majority of Americans

The checks and balances within a democratic government serve not only to curb the power of each branch from becoming absolute, but also to provide multiple avenues of achieving a more just and more equal society. This statement, on its face, may appear naïve, but it is ultimately true. Where the current law does not protect people equally or where justice is distributed unevenly, the judiciary may act in a manner unfettered by the politicking that must occur at the legislative level. If it is ultimately felt that SCOTUS went too far outside their power to deliver a right that is not supported by the vast majority of Americans, then the Constitution of the United States may be amended and thus the decision overturned. An amendment would require either two-thirds support of both legislative houses or two-thirds support of state legislative bodies.

The will of the majority is the ultimate benchmark of who will have what rights recognised. Like Brown, the same-sex marriage decision may eventually represent the normative stance of the American public and SCOTUS will have simply used its power to interpret the law as desired by the quiet majority of Americans. These rulings have little direct effect on the public in other countries and the decision was likely deeply unpopular in Pakistan, but that is beside the point. The exercise of power by SCOTUS is the real matter of interest to be considered here. In light of the Supreme Court of Pakistan’s suo motu power, the opportunity to employ judicial activism, if that is what it may be called, as an exercise of the will of the majority, especially to defend the rights of marginalised minorities, presents a significant opportunity.