Thoughts on Windsor and Hollingsworth

I believe that the Defense of Marriage Act ("DOMA") and California Proposition 8 are wrong.  I would never vote or support either.

However, upon further reflection I think it is very bad policy to let the Supreme Court be the final arbiter of this.  Here is how I view it:

To pass any law it requires both the Senate and House to approve it.  The House is highly gerrymandered and the Senate is probably the most undemocratic body in "democracy".  Each state gets 2 senators regardless of size AND because of the fillibuster often requires 60 votes.  Then the President has to sign on. 

If someone out there thinks the law is unconstitutional, that person can file an action in federal court arguing as such.  At that point, one judge rules however he or she sees fit.  Then it can be appealed when a panel of 3 judges decides one way or the other.  Then, it can be appealed to the Supreme Court where 9 judges get to decide.  By the way, all the judges are attorneys probably from about 10 different law schools and probably have very limited at best experience outside the theoretical aspects of law (academia, appellate work).

My point is this isn't democracy.  The decisions are all made by a few people not representative of the country as a whole.  If the Supreme Court was some sort of non-partisan, highly intellectual body of scholars who neutrally evaluated things, it might be different.  But that is the exact opposite of what the Supreme Court is.  The Supreme Court is just another political body cloaked as some sort of guardian of te constituion. 

The Hollingsworth holding is a classic example.  The "standing" argument is garbage.  The court wanted to rule in a way that wouldn't create outrage.  The easiest way to do that was to dismiss the appeal -  same-sex marriage in California is not a controversial issue anymore -  Prop 8 would be repealed by wide margins if voted on, so allowing same-sex marriage to remain legal in California offends no one.  Therefore, it is an obvious political opinion, all the intellectual stuff about "standing", "cases and controversys" and "injury" are words lawyers use when they trying sound smart, but really are terms for "we do not want to decide this".

I think judicial review has had its day and it is time for it to go -  but that won't be possible until we actually have a democracy, not some system where 500,000 people in North Dakota have the same say as 40 million in California.