‘Jurisprudence by the Polls’

by Rich Lowry

I wrote about gay marriage and the Court again today in Politico:

Supporters of gay marriage again and again cite the shifting polls, as if they are relevant to a deliberation over whether gay marriage is mandated by the Constitution. On “Morning Joe,” former McCain campaign manager Steve Schmidt, a signatory on a Republican pro-gay marriage brief, said he thought the Court would recognize the “importance of this moment.” He confidently predicted that gay marriage would pass in an initiative held in California in a presidential election year. Can’t we wait to have the court impose gay marriage until we’re certain an initiative would pass in an off-year election, too?

His former McCain campaign colleague and fellow signatory Nicolle Wallace appeared on “Fox News Sunday” and made the same case. “More than 60 percent of all Americans, everyone, supports marriage equality,” she said. Wallace was apparently referring to a ABC News/Washington Post poll that showed 58 percent support for gay marriage, which technically is not more, but less than 60 percent. (At least I think that’s what Nate Silver would say.)

This happens to be the best result in any of the recent polls for gay marriage. So Nicolle Wallace evidently believes the court should be swayed not just by opinion polls, but by outlier opinion polls. Her point would have been considerably attenuated if she had said, “The most recent Pew poll has 49-44 percent favor gay marriage and the Fox poll 49-46 percent support, slim pluralities that mean . . . the court . . . must . . . act . . . now.”

Pushed by host Chris Wallace (no relation) why the democratic process can’t be allowed to play out, Nicole Wallace cited Sen. Rand Paul for the proposition that “legislatures are about 10 years behind the public.” This is the view of the Supreme Court as super-legislature in its rawest form: Because democratically accountable bodies can’t be trusted to act quickly enough to pass laws that she prefers, Wallace wants the Court to impose them by June.

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