When the U.S. Supreme Court reads the federal Constitution as barring certain kinds of laws — especially state laws — people often raise three related objections:
-
The Justices are unelected, and not accountable to the people.
-
The Justices’ decisions are very hard to change for the people to change (since a constitutional amendment requires a two-thirds vote in each House of Congress, or a hard-to-call convention, plus majorities in three quarters of the state legislatures).
-
The decision of nine judges in Washington, D.C. is interfering with contrary views of the people throughout the country.
Of course, if one thinks that the Constitution does indeed command a particular result, then one probably wouldn’t raise these objections, largely because the Constitution was indeed enacted by the people (though usually a very different group of people than is now alive). But if one thinks the Justices read the Constitution wrong, these three objections exacerbate the error. And when a constitutional provision is very vague, these objections might be (to many) a reason to leave decisions in the hands of the democratically elected branches rather than in the hands of the Justices.
It’s not clear, though, that the same objections play out quite the same way when we have a state Supreme Court interpreting a state constitution. In many states, Supreme Court Justices are indeed elected; in other states, they are at least accountable to the voters in retention elections. In most states, the state constitution is quite easy to change, generally requiring only placing a constitutional amendment on the ballot (which may be expensive if signatures need to be gathered, but which can often be done with no such expense by the people’s representatives in the legislature) followed by a majority vote of the electorate. And the decision is at least made by Justices from one’s own state, rather than by people in far-off Washington, D.C.
Consider, for instance, the California Supreme Court decision in the same-sex marriage case. California Supreme Court Justices are accountable to the people in retention elections, a weak form of accountability but still some accountability. The California Supreme Court Justices are at least Californians making decisions for other Californians. And in November, the voters will have the final word on the matter, with a 50%+1 vote being all that’s required to reverse the court decision — no need for the famously cumbersome Article V federal constitutional amendment process.
Naturally, if one thinks the California Supreme Court interpreted the state constitutional provisions incorrectly, the fact that their error can be easily corrected doesn’t mean that it’s not an error. But it might suggest that residents of California — and especially of states where the constitution is easier to change and the Justices are elected in competitive races — should be less concerned about Justices’ ability to place their own interpretations on vague or ambiguous constitutional language.