"Will of the People"

Last serious post for a while, I promise. But in the Activist Judges post comments, somebody asks whether the judiciary shouldn't bow to the will of the people if the will is, to paraphrase "overwhelming." At what point is a judge who decides against the majority wishes of the populace in some manner, to whit, subverting democracy?

First off, the problem is people use "democracy" as a catch-all phrase for the set of legal protections we have in place in America as opposed to its correct definition. Again, read Zakaria, then come back.

Second, and I cannot make this more plain -- that's not subverting the way the US is supposed to work, that's the way the Founding Fathers DESIGNED the US to work. Quite frankly, when you're pissed off at at least one of the branches of government, the US is working according to plan.

Hmm. An example to pull us out of the land of airy-fairy theory and into practical application:

As of this month, going by the latest Quinnipac and CBS polls, recognition of SOME sort of legal agreement between gays comes in around 45-50% now -- using the word "marriage" changes the numbers considerably, showing again the power of semantics. More tellingly, support for a Constitutional Amendment banning even marriage (the hot button word getting the biggest negative response) barely clears 40% in most polls. What does this indicate? What opposition there is, it's not as deep as it is broad. So, while one can argue either side of the issue, it's not so far out in the land of bizarre-o that the courts are breaking basic social construct by tackling the issue.

However ...

... when the Supreme Court struck down the bans against interracial marriage in 1968 through Virginia vs. Loving, SEVENTY-TWO PERCENT of Americans were against interracial marriage. As a matter of fact, approval of interracial marriage in the US didn't cross the positive threshold until -- sweet God -- 1991

Damn activist judges, eh?