Jack Balkin has some interesting thoughts in response to Larry Solum's devastating critique of a recent column by Edward Lazarus (which itself was in response to a dissent by Judge Kozinski, to complete the trail). Balkin says this, in explanation of how it was that the Supreme Court came to protect equal rights for women under the Equal Protection Clause:

It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. * * *

That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.

(Emphasis added to point out phrases to which I intend to respond.)

I don't disagree, of course, that the Constitution should do more than protect aristocratic white male property owners. But I absolutely disagree that the greatness of the Constitution (as interpreted by the Supreme Court) has anything whatsoever to do with the Supreme Court's willingness to "bring the Constitution in line with the times." Sometimes the times are correct and good; and sometimes they are not. The degree to which this theory is appealing is surely dependent on whether, at a certain point in history, one's own political opinions are "in line with the times."

Moving on, one of the classic problems of theories of judicial review (at least since Alexander Bickel) is how to properly account for the "counter-majoritarian" problem -- i.e., how come judges have the authority to strike down legislation that a majority supports?

The dilemma, of course, arises from the fact that counter-majoritarian rulings are by far the most useful, at least to the minorities who would otherwise be subject to the majority's preferences. The most useful sort of constitutional ruling, in other words, is one that goes against the grain of the times rather than falling in line with the times.

If that sounds odd, think how much more useful it would have been to have a constitutional ruling in Dred Scott that went against the grain of the times and allowed Congress to protect freed slaves. Or think how useful it would have been for gay people to have constitutional protection against sodomy laws back when such laws were more prevalent and more regularly enforced, as opposed to a time when they have been almost thoroughly eradicated anyway.

But Balkin's theory, it seems to me, calls for what amount to majoritarian constitutional rulings -- majoritarian, that is, in the sense that they are based on national majorities (as opposed to local majorities). Balkin's theory, if I read him correctly, is that the Court should be a perpetual Johnny-come-lately, ever sticking its finger in the air so that it can discern the past decade's trends and write them into the Constitution (in the event that a few outlier states or towns haven't fallen in line with the rest of the country). He applauds the Court for discerning what a broad majority of the country had come to think on matters of sexual equality, and then imposing that view on the oddball local majorities who had yet to be convinced.

That sort of theory is a recipe for making the Court largely superfluous, useful only to the extent it is able to lumber around patching up minor holes in political movements built by political actors. After all, if society in general is overwhelmingly moving towards legal protection for the equality of women, how much good is the Supreme Court really doing by finally announcing its intention to strike down a few remnants of discriminatory legislation that would likely have been eradicated by the political process in the near future anyway?

To be blunt, if the Court's proudest achievements are reducible to its willingess to follow the election returns, why bother having a Supreme Court with a judicial review function at all? Why not just leave the election returns to stand on their own?

UPDATE: I now see that Larry Solum has even more comments in response to Balkin here.