by Opanyi Nasiali, Claremont mayor

In Brown v. Board of Education (1954), the US Supreme Court reversed a prior ruling in Plessy v. Ferguson (1896), which had maintained “separate but equal” racial segregation laws. By this action, the court did not merely interpret the law; it correctly intervened to do what was not only legally but morally just. Today such action could have been labeled as “judicial activism.” But isn’t this necessary when the political (legislative) remedy is missing partly due to the “tyranny of the majority”?

In a democracy, the principle of “majority rule” assumes fairness. Using this doctrine, democratic nations adopt laws that are supposed to be fair. After all, if the majority agrees to it, the law is implicitly fair. But its potential or real negative impact on the interests of select group(s)—usually minority—is overlooked ostensibly as non-prejudicial. Laws that are adopted through this “majority rule” process are thus accepted as valid. As long as the laws are applied equally they are presumed to be fair.

This application of laws is what constitutes the rule of law. Other phrases like “equal justice for all” or “equality before the law” or “blind justice” are synonymous. They conjure up a tolerable feeling of fairness. Totalitarian regimes, on the other hand, may feign “rule of law,” but it is all dubious. That is why democracy is believed to be superior to totalitarianism. “Rule of law” is more positively aligned with and acceptable in democracy.

Can the democratic “rule of law” be flawed and unjust sometimes? Yes.

While democratic nations cherish fair and just laws, they sometimes adopt laws that tarnish the rule of law doctrine. How do or can democracies remedy the situation on occasions when they adopt unjust laws? The customary approach is through the political process (legislative, public referenda initiatives, social and political rebellion) which requires persuasion of the majority to effect change. This is the essence of majority rule embedded in democracy.

However, a law supported by the majority may be perceived as fair, but it may not necessarily be a just one. When Alexis de Tocqueville of France, in the 1830s, came to study the American democratic system, he praised it except for what he called the “tyranny of the majority,” whereby the majority’s decision can be unfair to the minority.

The majority can be wrong, biased and intolerant.

Therefore, when unjust laws are adopted and the political process does not remedy them, the only other remedy is through judicial action. The courts must act beyond mere interpretation of the law. The judiciary has not only a legal obligation, but also a moral responsibility to remedy unjust laws, and establish the basis upon which fair laws can be adopted. A case can be made for judicial intervention when unjust laws are adopted and the political process is either too slow or unwilling to remedy them.

The US has 3 branches of government: legislative, executive and judicial. These branches have equal power and constitutional authority. When judges exercise this power and authority to remedy unjust laws, they must not be accused of “judicial activism.”

The US Supreme Court has, on several occasions, remedied unjust laws. For example in addition to the Brown v. Board of Education ruling, the court in Loving v. Virginia (1967) also remedied unjust laws in 16 states that prohibited inter-racial marriages.

In a controversial decision in Roe v. Wade (1973), the Supreme Court granted women the private right to legal abortion. Later, in Planned Parenthood v. Casey (1992), the court re-affirmed legal abortion rights with 5 justices in the majority stating: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Most recently, in Ricci v. DeSetefano (June 2009), the court remedied the unjust application of law against the job promotion of white firefighters in New Haven, Connecticut. These landmark rulings have enhanced individual human rights and made a positive difference in the application of fair “rule of law” in the US. These are examples of the judiciary fulfilling its constitutional and moral responsibility.

Conversely, the California Supreme Court failed to remedy an unjust law—Proposition 8—that denied homosexuals the right to marry each other. This was appealed to the federal courts. The Federal Appeals Court in California found Prop 8 unconstitutional and that decision was appealed to the US Supreme Court.

On June 26, 2013, the Supreme Court affirmed the Appeals Court ruling, declaring Prop 8 unconstitutional. The Supreme Court also ruled that the Federal “Defense of Marriage Act” (DOMA) was unconstitutional. These 2 rulings constitute another historic landmark for individual rights and justice. But more needs to be done so that all states can adopt equal protection of this civil right for the sake of preserving “liberty and justice for all.”