Balkin gestures at another possible kind of constraint when he discusses Lawrence v. Texas, the sodomy-law case. Balkin argues, “In fact, the scope of the constitutional right of privacy is determined by evolving social norms, not by legal logic. It is determined by politics and social movement contestation, even if judges don’t recognize this fact or admit it to themselves. We often think that fundamental rights should reflect basic values that do not change over time. In fact it is quite the opposite. Through social movement contestation, people demand that the articulation of fundamental rights keep pace with their changing ideas of what values are most important and fundamental. Rights become timeless, in other words, when the time is right for them.

“…The same thing, I would submit, is happening with same-sex relations. When the Supreme Court first considered the issue in 1986 in Bowers v. Hardwick, homosexuality was only beginning to win widespread social acceptance. Not surprisingly, the Supreme Court, filled with people of a much older generation, could not muster five votes to protect the rights of gays and lesbians. What was surprising was that there were already four votes to do so. Now, with Will and Grace one of the top-rated comedies on television, it is quite clear that a very large number of people have changed their views. It is only a matter of time before the Supreme Court begins to protect same-sex relations. Whether they will do so through extending the right of privacy or through the use of the equal protection clause is yet to be determined. But they will change constitutional law to accomodate changing social mores. However, since there have been no similar changes in social attitudes about incest or polgyamy, there is no reason to think that courts will protect those practices.”

This at least implies that judges should C-judge only when they have a rational expectation that the tide of history is flowing their way.

Oh so many problems. a) The Court not only follows the tide. It pulls the tide. The Court’s decisions affect social movements–obviously, or social movements wouldn’t always be trying to fight their battles in the courts!–and can add prestige and respectability to one side or another. The Court helps create the tide, and shouldn’t present itself as a passive bit of flotsam.

b) Those social movements turn to the courts often because they have failed to win enough, or fast enough, victories in the legislature. That in itself seems to show that the tide has not necessarily turned, and that the movement’s future is still uncertain.

c) Tides turn back. Cf. welfare reform as vs. the welfare-rights movement (which appeared to be gaining steam throughout the 1970s); the unpredictable political effects of America’s periodic religious revivals and “awakenings”; the surge of pro-life beliefs among young people. This can either be a Justice Janis impetus to “get it while you can”–make as many controversial rulings as you can get away with before the tide turns against you–or as a call to a degree of humility about one’s own ability to predict the effects of technological development, political pressure, and a country of restless souls.

and d) If these practical concerns (you can’t always tell what History will say) are the only barriers to C-judging, the Court really is just a philosophical tribunal that refers to the Constitution as a kind of sacred hidden totem, useful for conferring legitimacy but not constraining upon Court decisions in any major way.