But you have to remember, there is no guarantee that the 9 robed men/women will protect minorities under the current system. We really don't know anything about these people. We didn't elect them.
Judges that are appointed are preferable because they can make decisions without the fear of running for reelection.
"If you can't stand the way this place is, Take yourself to higher places!"
Break, By Three days grace
Hilliary Clinton/Tim Kaine 2016
And then the courts came in and tore it down with their unelected fingers.
"We all of us know down here that politics is a tough game. And I don't think there's any point in being Irish if you don't know that the world is going to break your heart eventually."-Daniel Patrick Moynihan, December 5, 1963
The law is not above the people. The law is for the people. The people have a right to decide who is sitting on that bench doling out the law to them.
Americans are capable of governing themselves, they don't need a self-appointed genius lawyer (or nine of them) to lay out the law for how they should live their lives. The people deserve a hand in our own destiny. I don't buy the pretense that we're not capable or smart enough to do that for one odd minute.
Give the power back to the American People, I say.
Alexander Hamilton said this about the tenure of appointed judges in The Federalist No. 78 about providing for them to hold office during good behavior:
[This] is conformable to the most approved of the state constitutions . . . . Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
I agree with Hamilton. The main problem I see with decisions like Obergefell is the doctrine of substantive due process they rely on. As the Court itself has discussed, it tends to lead to rulings whose lack of any reasoned constitutional basis invites the suspicion they are nothing more than arbitrary, undemocratic dictates. In fact that was the main reason the Court ended its three-decade-plus "Substantive Due Process Era" in 1937, as far as economic regulations are concerned. It is in reaction to the excesses of that era, during which the Court struck down more than 200 laws for violating an implied constitutional "liberty of contract," that ever since, laws setting maximum work hours, imposing professional licensing standards, or similarly regulating economic matters have been presumed constitutionally valid and have only had to meet the extremely deferential standards of rational basis review.
But when it comes to controversial social issues, the Court has shown none of that restraint. Due process has become a convenient excuse for concocting liberties that no one who drafted or approved the Fourteenth Amendment in 1868 ever imagined in his wildest dreams. Maybe Congress should start viewing flagrant misuse of the Due Process Clause in cases like Obergefell as a violation of the standard of "good behaviour."
We need a mechanism to ensure judicial restraint, and to ensure good behavior... to where it is no longer a question of hoping and watching, but rather an active, democratic process.
It seems to me, no better judge of good behavior and ethical restraint exist than the voting American Public.