The United States was built on a distrust of concentrated power. It is this fundamental distrust of big government that shaped federalism, defined the separation of powers, and limited each branch to a distinct role. During periods of rapid social change, however, governmental restraint weakens. Reform movements—whether in civil rights, economic regulation, or cultural policy—have not only produced legislation but also expanded judicial authority.
Social progressivism brings courts to no longer just interpret the law but also reshape it.
The Civil Rights Act of 1964 addressed a clear injustice. It prohibited discrimination in employment and public accommodations based on race, color, religion, sex, or national origin. Congress enacted the law through the democratic process, responding to a national failure to enforce equal protection. While many conservatives criticize the Act's expansion of federal authority, it came through elected representatives.
But the long-term impact of the Civil Rights Act did not come from its text, but rather how courts interpreted it.
In Griggs v. Duke Power Co., the Supreme Court introduced the doctrine of disparate impact. Under this framework, discrimination no longer depends on intent, but on outcomes. A neutral requirement—a diploma, a standardized test—can be invalidated if it produces unequal results and lacks a sufficient connection to job performance.
The Griggs decision redefined discrimination–moving the legal system away from equal treatment and toward equal outcomes. Once outcome disparities become the measure, almost any neutral policy becomes suspect.
The logic behind disparate impact legitimized broader theories of affirmative action and diversity, equity, and inclusion policies. Those approaches assume unequal outcomes are, by themselves, evidence of systemic discrimination requiring correction. Regardless of whether that premise is persuasive as policy, it does not appear in the Constitution or in the original meaning of the Civil Rights Act.
The Court attempted to limit disparate impact to requirements unrelated to job performance. This limitation, however, requires judges to decide how closely a requirement relates to a job, turning a legal judgment into a policy judgment.
Many employers require college degrees for positions where a degree is not strictly necessary. The requirement functions as a screening tool. Under a strict disparate impact framework, such a practice could be challenged based solely on statistical disparities.
The central issue is not whether inequality should be reduced, but rather who decides how to reduce it. In a constitutional republic, social and political change occurs through the democratic process. Legislatures—elected and accountable—create policy. Courts do not. They interpret and apply law within the fixed framework of the Constitution. When that boundary collapses, the structure of government shifts. Authority moves away from voters and toward judges.
Similarly, in Roe v. Wade, the Court held that the 14th Amendment protected a right to abortion. The text does not mention abortion. The historical record does not support such a right. Even late Justice Ruth Bader Ginsburg, a staunch defender of abortion rights, criticized Roe’s reasoning, arguing that its constitutional foundation was “heavy-handed judicial intervention” rather than principled interpretation.
Nearly fifty years later, in Dobbs v. Jackson Women’s Health Organization, the Court reversed course. Justice Samuel Alito concluded that the Constitution does not confer a right to abortion and returned the issue to the states. The decision did not resolve the moral debate, but it did restore the constitutional structure. Authority returned to the people.
Regardless of one’s view on abortion, Roe removed the issue from democratic decision-making. It imposed a national rule without constitutional grounding. Dobbs reversed that approach by allowing for it to be resolved through the political process.
The overturning of Roe shows that reversal is possible, but it is not a universal remedy for judicial overreach. Same-sex marriage provides a clear example; the underlying decision does not align with any constitutional reading, but reversing it would create substantial disruption. Public opinion has shifted, and a clear majority of Americans now support same-sex marriage. While that consensus carries weight as policy, it does not resolve which level of government holds authority over marriage law.
Like abortion, the Constitution does not mention marriage and does not define it. Historically, the regulation of marriage fell within state authority. At the time of the 14th Amendment’s ratification, every state defined marriage as a union between one man and one woman. That historical understanding did not include a national redefinition imposed through federal judicial power.
From an originalist perspective, the issue remains with the states. In Obergefell v. Hodges, the Court required states to recognize same-sex marriage, grounding its reasoning in evolving concepts of dignity and autonomy rather than in the Constitution’s original meaning. Antonin Scalia emphasized the central point in dissent: no state recognized same-sex marriage at the time of ratification. That fact complicates any claim that the Constitution originally protected such a right.
Even so, identifying a weak originalist foundation does not automatically justify reversal. Constitutional interpretation operates alongside institutional stability. The Court’s authority depends on public acceptance. As Stephen Breyer has noted, courts do not enforce their own decisions; their power rests on trust. When decisions are perceived as political rather than legal, that trust weakens, and institutional authority follows.
Scalia recognized the same risk. A judiciary viewed as a policymaking body loses its claim to neutrality. Once that perception becomes entrenched, the rule of law itself becomes less stable.
Same-sex marriage is now embedded in American life. Millions of couples have married, families have formed, and legal systems rely on the continued recognition of those relationships. Reversal would extend beyond a transfer of authority to the states, unsettling established expectations and disrupting existing legal and social arrangements.
Through the doctrine of stare decisis, the Court considers not only whether a decision was wrong, but how deeply it has been relied upon and how disruptive a reversal would be. As Scalia noted in Planned Parenthood v. Casey, factors such as reliance interests and workability must guide the decision to overturn precedent.
Those considerations do not validate flawed reasoning, but they do determine when correction is appropriate.
Roe produced decades of conflict and persistent legal instability. Returning the issue to the states restored democratic engagement. Same-sex marriage, by contrast, has been absorbed into the legal and social framework with far less disruption.
Not every incorrect decision should be immediately overturned. Some precedents become so embedded that removing them would do more damage than preserving them. The same principle applies beyond constitutional law. Doctrines like disparate impact should not be imposed through judicial interpretation. If such policies are necessary, the Framers provided a clear mechanism for their adoption—legislative enactment.
I usually do not oppose social change. The underlying goals—reducing discrimination, expanding opportunity, and addressing inequality—are widely supported. The concern is how those goals are pursued, not the goals themselves.
Alexander Hamilton described the judiciary as the “least dangerous branch” because it lacks both force and will. But when courts assume policymaking authority, that safeguard disappears. Courts must remain limited in role, even when confronting modern disputes. When Justices act as legislators, they bypass the democratic process.
Both judicial activism and legislative action can produce policy outcomes. The central question is who governs. When courts define policy, judges govern. When legislatures do, the people govern.