Six months ago, California's highest court discarded its reputation for caution and ended the state's ban on same-sex marriage.
Now the moderately conservative state Supreme Court is being asked to take an even riskier step -- to overturn the November voter initiative that reinstated the gay-marriage ban and possibly provoke a voter revolt that could eject one or more of the justices from the bench.
The court is under intense pressure from all sides. Its first response to the challenges may come today, when the justices meet privately in a weekly conference to decide which cases to accept for review.
Legal scholars say case law does not give the court a clear path for overturning the voter-approved measure. The state high court -- six Republicans and one moderate Democrat -- generally defers to the will of the people. Only twice has the court rejected initiatives on the legal grounds cited by opponents of Proposition 8.
Civil rights groups, churches and local governments have filed six lawsuits asking the court to declare the measure an illegal constitutional revision. Letters also have poured into the court pleading for urgent action, and anti-Proposition 8 rallies have attracted large crowds statewide.
At the same time, opponents of gay marriage have warned that they will work to oust any justice who votes against Proposition 8, a threat particularly palpable in a year when voters in other states have booted six state high court justices after campaigns by special interest groups.
"It is a time of lots of crocodiles in the bathtub," said Santa Clara University law professor Gerald Uelmen, who has followed the court for decades. "Their oath requires them to ignore these kinds of political threats. But the threat of having to face a contested election is a significant one."
So, opposition to the one of these judges will have nothing to do with whether or not the matter is decided in accordance with state law, and everything to do with whether the judge decides the "right" way for these opponents of Proposition 8. Even if most of these voters understood the intricacies of state ballot initiative law (they don't) and the question was a close one that could go either way, it wouldn't matter to them. Whatever the law says, they'll be furious with these "activist judges" because they will have ignored the "will of the people." They will work to oust them, even if the judge makes the decision in accordance with what he earnestly believes the law requires and not out of his or her own personal preferences. And these judges will most certainly be thinking about that as they consider this case, making their impartiality-a requirement of their office-necessarily suspect.
The election of judges is a farce. In a contest between what the law requires and what the people want, the people will win and the law will lose, either because the judge will be swayed by the prospect of voter ire or because the people will vote that judge out. To satisfy the silly requirements of those who think that judges should be accountable to the public for their decisions on questions of law that the public can't even understand is ridiculous, and should not be permitted in a country that values the rule of law as highly as we supposedly do.