… there is a Republican core to yesterday’s California marriage decision . Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)
It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them , by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices , following a campaign waged by Deukmejian.
Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let’s not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about “living constitutionalism.” Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California’s Constitution ?