This past Friday, the U.S. Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize similar marriages licensed and performed out-of-state. Of course, this decision will be celebrated by marriage equality activists and supporters, like myself, and vilified by opponents. However, beyond this political dialogue, legal scholars likely will analyze the Court’s discussion of its proper place in a democracy. After all, democratic theory played a central role in the majority and dissenting opinions. For example, Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan wrote in their majority opinion that the Supreme Court has a duty to defend fundamental rights in a democracy:
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
According to the majority, then, the Court has a role to play as protector of individuals’ fundamental rights—even if, and particularly when, the majorities in legislatures refuse to act. By contrast, Justices Roberts, Scalia, Thomas, and Alito argued in their dissenting opinions that the Court should be particularly deferential to legislatures. Otherwise, as Scalia wrote, the Court would be undermining the People’s “freedom to govern themselves.” And so far, certain state legislatures had refrained from providing same sex couples with the right to marry; a right, they argued, that remained the purview of the states to define.
In the next few weeks, given the momentous and contentious nature of the Supreme Court decisions that have just been handed down, we likely will hear various arguments regarding how the Court relates to our democratic system. Some legal scholars echoing the hopes of civil rights lawyers of the mid-twentieth century might continue the majority’s claim that the U.S. Supreme Court has a rightful place as defender of fundamental rights even when (and perhaps, especially when) legislatures do not defend these rights. After all, as many Americans noted after the Second World War, democracy needs to mean more than simply the will of the majority: If not, it would be difficult to distinguish democracy from any other regime such as Nazism or fascism that might be willed by the majority. Instead, democracy represents not only the will of the majority, but also a regime with certain cherished ideals such as equality. Under this definition of democracy, the U.S. Supreme Court has an important role to play as protector of these ideals.
Others legal academics writing in the spirit of early-twentieth-century progressive legal scholars and mid-twentieth century legal process thinkers might echo the authors of the dissenting opinions and note that the U.S. Supreme Court is nothing more than an elite group of lawyers who should use vast restraint when questioning legislation: Otherwise, they threaten the very core of democracy, popular democracy. In particular, they might resemble early twentieth-century progressive legal scholars by arguing that, in a democracy where the majority rules, the economic, political, and social preferences of nine should not trump those of the masses who vote for their legislative representatives. Or they might mimic later legal process scholars who contrasted totalitarianism with democracy and defined the latter by the People’s ability to govern themselves.
The Court’s reasoning in Obergefell might reignite within the halls of law schools some of these discussions on the proper role of the Supreme Court in a democratic United States. But this debate also should provoke our thinking about the philanthropic sector in this country. After all, in many respects, philanthropic organizations, like the Court, are bodies of unelected individuals entrusted to look after the public good.
Of course, the leading public role of the U.S. Supreme Court might seem more obvious than that of philanthropic organizations particularly since Justices are nominated by the U.S. President; confirmed by the Senate; and, they remain on the federal government’s payroll. Even more, the American public understands this group of nine unelected individuals as public servants. By contrast, private foundations’ staff and trustees are appointed by their own institutions; and unlike the salaries of Supreme Court Justices, compensations within these organizations do not come directly from the federal government. However, as Rob Reich explained in The Boston Review in 2013, private foundations also serve a dominant public role in American society: “The assets of a modern philanthropic foundation are set aside in a permanent, donor-directed, tax-advantaged private endowment and distributed for a public purpose. These considerable private assets give it considerable public power.” Private foundations, like the U.S. Supreme Court, are institutions entrusted by the American people to serve the wellbeing of the public, whether through the U.S. Constitution, subsequent legal precedent, or tax-exempt status. While the Supreme Court serves the public by being the supreme court of the land and final arbiter of the U.S. Constitution, philanthropic organizations do so by defining and choosing among problems in society and by brainstorming and funding certain solutions over others. And like Supreme Court Justices, staff and trustees in these philanthropic organizations arrive at their positions through appointment and not through any vote of the American people. As unelected individuals making decisions for the public, they sit just as uncomfortably—and arguably more so than the Court—in a democratic society that finds value in the popular will over public policy.
And just as the Supreme Court in Obergefell has provided contending arguments as to how the Court should fit into the democratic process, we have witnessed in recent months different conceptions within the philanthropic sector on how philanthropy should as well. In the spirit of the majority opinion, for example, the Ford Foundation has suggested that an unelected body entrusted to look after the public good in the U.S. has a part to play in defending fundamental rights such as equality. As Pablo Eisenberg wrote last week in The Chronicle of Philanthropy: “Tackling inequality seems to be the new buzzword on the philanthropic circuit. The Ford Foundation became the latest to join in, declaring this month that all of its grants will be designed to focus on the issue.” By contrast, Justices Roberts, Scalia, Thomas, and Alito seem to echo the Hewlett Foundation’s own vision for unelected bodies charged with a public purpose: high deference to legislatures with the hopes of buttressing participatory democracy. In this vein, the Foundation writes that the goal of its relatively new Madison Initiative is “to help strengthen the nation’s representative institutions so they can address problems facing the country in ways that work for the American people.”
Much like the Supreme Court Justices, I imagine that philanthropic staff and trustees will disagree on the role that their organizations should play in a democratic United States. However, much as the Court did in Obergefell, the sector’s leaders need to grapple with this question. And much like this other unelected public body-of-nine in Washington, they should feel obligated to provide the American people with their logic and to challenge their colleagues on their reasoning.
Maribel Morey is a co-founder of HistPhil and Assistant Professor of History at Clemson University. She has a PhD in History from Princeton and a JD from NYU Law.
Learned Hand, The Bill of Rights (Cambridge, Mass.: Harvard University Press, 1958).
Henry Hart and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (ed. by William N. Eskridge, Jr. and Philip P. Frickey) (Foundation Press, 2001).
Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
Lochner v. New York (1905), Justice Holmes’s dissent.
Thurgood Marshall, “’The Supreme Court as Protector of Civil Rights: Equal Protection under the Laws’ (Annals of the American Academy of Political and Social Sciences, May 1951),” in Mark V. Tushnet (ed.), Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (Chicago: Laurence Hill Books, 2001).
Obergefell v. Hodges, 576 U.S. __ (2015).
Louis H. Pollack, “Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler,” 108 U. Pa. L. Rev. 1 (1959).
Rob Reich, “What are Foundations For?” The Boston Review (March 2, 2013).
Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, Vol. 73, No. 1 (Nov., 1959).