The role of the court and musings on leadership

Sean Thompson - The Political Animal (Tom Bateman/AQ)

In the U.S. last week, the Ninth Circuit Court of Appeal affirmed a district court judgment finding California’s controversial gay marriage ban unconstitutional in the case of Perry vs. Brown, also known as the Proposition 8 case.

The court ruled 2-1 that “Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignity of gays and lesbians in California,” and couldn’t justify removing the previously existing right of same-sex couples to marry in the state.

Practically, the decision has little effect and will likely be appealed to the Supreme Court. It does, however, highlight something important about the role of courts in the political process both in the U.S. and Canada.

By and large, courts serve as a check on what Alexis de Tocqueville called “the tyranny of the majority.” That is, the majority imposing its will so strongly as to oppress a minority.

Courts don’t make law, but they strike out laws or parts of laws that don’t conform to a country’s constitution or to principles of fairness and natural justice. As they are small-c conservative institutions, they bind themselves tightly to precedent and logic, dispensing arguments that bear little on a case. For example, the idea that granting same-sex couples the right to marry somehow violates the sanctity of marriage.

Canadian judges, being much more apolitical than their counterparts to the south, rely even more on those principles. Think about that the next time somebody calls government action unconstitutional.


Staying across the border briefly, the Republican race for president is now as wide open as ever.

Former Pennsylvania senator Rick Santorum scored lopsided victories in last week’s caucuses and primaries in Colorado, Missouri and Minnesota.

Santorum’s unflappable social conservative credentials, including stalwart support of traditional marriage and welfare reform, is winning him much support with middle American Republicans who still haven’t warmed to Mitt Romney’s moderate record.

The former Massachusetts governor won the Maine caucuses on Saturday, but now finds himself lagging in national polls, unable to connect to the evangelical GOP base. That base may prove decisive on March 6, known as “Super Tuesday,” when Republicans in 10 states from Georgia to Alaska cast their nominating votes.

Newt Gingrich’s campaign has floundered since his disappointing debating and electoral performances in Florida two weeks ago. His stubborn commitment to continue, however, may bring the nomination fight to the Republican convention floor for the first time in modern history.

The prolonged battle is wounding all remaining Republican hopefuls, including plucky libertarian Ron Paul, in general public opinion. Combine that with a slow but steady drop in unemployment, and the stars seem to be lining up for Barack Obama’s re-election as president in November.


The NDP’s leadership candidates have the opposite problem.

I’d bet more Canadians are following snowmobile racing than the race to lead the Official Opposition – and that could trouble whoever wins the job next month.

Last spring, the NDP traded heavily on Layton’s charisma and his ability to connect with people more than his image or policy.

That nobody in the race, be it front-runners Thomas Mulcair or Brian Topp, dark horses Peggy Nash or Nathan Cullen, or the three other remaining candidates, have brought Jack’s energy to the race raises doubt as to whether anybody can bring that charisma to Stornoway.

Without it, the NDP risks losing not only the gains they made in Quebec (as the natural choice for voters abandoning the Bloc), but elsewhere in Canada, as even without Quebec, the party won more seats than ever before.

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