The United States judiciary is one of the oldest and most distinguished in the world, often used as a model by other countries. (“Withholding Judgment,” José Alberto Cabranes, 9/10 Foreign Affairs, pg. 133.) Yet, as writer José Alberto Cabranes reminds us, its powers are limited to making judgments based on past precedents with no power to legislate, make policy or to enforce. If the judiciary has any power to lead, it leads from behind (Ibid pg. 126) Courts interpret laws passed by the Congress and which are already in effect. As a tool for social change, Cabranes argues the judiciary is a weak tool for social activists, liberal and conservative, to affect change.
For example, the Court’s decision on Roe v. Wade, the ruling that recognized a woman’s right to an abortion, has settled little in the hearts and minds of the citizenry. An ideological struggle remains — evidence that the court may rule but not govern. (Blog 9/30/15)
A more recent example of the court’s limits comes in the form of Kim Davis, the Rowan County clerk in Kentucky who defied a Supreme Court ruling and refused to issue marriage licenses to gay couples. She argued her religious beliefs took precedence over civil laws. She has decided to make that argument in court and will probably loose, though the hearts and minds of a sizeable constituency are cheering for her. Again, her persistence against the odds is evidence that courts may end debate but resolve nothing.
By design, courts are retroactive. After the Executive and Legislative branches have acted, courts are tasked with giving those actions an impartial review based upon history and precedence. Their decisions are on narrow points of law — what Cabranes calls “the myopic lens of a particular case.” (Ibid pg. 130)
Because of its limited powers, the courts were never meant to be an efficient tool for social change and “should not be at the tip of the country’s spear.” (Ibid pg. 130)
As citizens, we would be wise to remember the difference between the courts, the executive and legislative branches of government. We should honor judicial restraint and address our desire for change to the election process.