Why Does Jurisdiction Stripping Matter?

Civil rights advocates and others seeking fair treatment for all have had some success working with various branches of government. Presidents have signed executive orders that barred some forms of discrimination and Congress has passed important civil rights legislation. But the branch we rely on most to ensure our rights is the courts.

"The American common law judicial system has always placed more responsibility on the third branch of government [the courts] and on the American jury than any other court system in history. That's why it matters. What courts do matters. That's why it's important that courts remain impartial and appear to be impartial to the people that they serve."
— Roger Warren, president of the National Center for State Courts and a 20-year veteran judge in Sacramento, Calif.

The courts are not with us on every case. As recently as 2002, courts were siding with the 13 states that still declared private, consensual sex between same-sex partners illegal. Balanced against the success in Massachusetts with Goodridge v. Department of Public Health, the 2003 case that created statewide marriage equality, is the fact that other courts have rejected equal marriage rights. And it is far from clear that the current Supreme Court would rule favorably on this question.

The point of supporting an independent judiciary is not that we will win every case. It is that we will continue to have an institution we can appeal to for fairness — an institution that promises to right wrongs, to deliver justice. Presidents and members of Congress rely on elections and seek to do what is popular. It is only the judicial branch that pledges it will be impartial, that it will protect minority rights and not simply bow to the will of the majority. Judges and courts are the last, best resort for underdogs and minority groups to fight for rights that would otherwise be denied by an apathetic or antagonistic majority.

“The Founding Fathers believed in the voice of the people and their elected representatives and placed substantial power in the Legislature. At the same time, however, they were acutely sensitive to the rights of individuals and minorities. Most of them had a first-hand experience with persecution. The idea of a written Constitution was precisely to place a check on the popular will and, in large part, to restrain the most powerful branch.”
— William French Smith, attorney general under President Reagan.

In Massachusetts, marriage equality was won in court. A 1993 decision by Hawaii’s Supreme Court opened debate in that state and sparked national discussion about marriage equality. And, eventually, the Supreme Court did decide, in 2003, that it was not in any state’s interest to arrest two men—or two women-- for having sex in their bedroom.