Gay Marriage Timing in New Jersey
Suppose that a multimember court has decided (a) that a state must allow same-sex marriage, (b) that a state may not continue affirmative action programs, or (c) that a popular environmental statute is unconstitutional. Suppose too that the opinion is written -- and that a national election will be held in two weeks. Suppose finally that the court is aware that the ruling will have at least some degree of relevance to voters. Should the court refuse to issue the opinion until after the election?
It is worth raising this conclusion because the New Jersey ruling (not requiring the state to allow same-sex "marriage," but requiring same-sex couples to be provided with the material equivalents of marriage) was issued within two weeks of the national election, and some people believe that it will have electoral salience. As far as I am aware, there is no serious scholarship on the question whether and when it is appropriate to wait to issue a controversial ruling until after an election.
Consider two possible positions:
1. The court should issue an opinion whenever it is ready to do so. It does not matter whether an election is imminent. It is no more neutral to hold the opinion than to issue it immediately. If the court's decision is controversial, the voters deserve to know about it before they vote, not after. "Holding" an opinion is too strategic; it smacks of opportunistic behavior on the court's part, an effort to avoid electoral reprisal.
2. It is appropriate and possibly the better practice for the court not to issue a controversial opinion in the period immediately preceding an election, simply because of the risk that the timing will give the opinion undue salience, in a way that will distort the process. Of course any particular event might have such a distorting effect, if it occurs immediately before an election. But if judges can control the timing of their intervention to avoid the risk of that distorting effect, they should do so.
I tend to think that under certain circumstances, (2) is correct; but it is a reasonable objection that voters deserve to hear about the ruling when they are deciding how to vote. Whether the objection is reasonable, as opposed to right, may depend on whether the timing will improve voters' information, or instead distort the whole process by making one development especially salient.