Jack Balkim on Obergefell, the Supreme Court decision that made gay marriage legal in the US:
Continual interactions between culture, law, and politics gradually reshape constitutional common sense, thus enabling and authorizing lawyers and judges--not just Anthony Kennedy--to reach changed constitutional conclusions about the best interpretation of the Constitution. To be influenced by these changes, lawyers and judges do not have to watch-- or even care about-- public opinion polls. All they need do is live and participate in a larger culture. Through their everyday efforts at argument and persuasion, Lawyers and judges inevitably translate changing values into constitutional language. They then claim that democracy must yield to fundamental rights, but the source of fundamental legal rights--or, more correctly, new interpretations of these fundamental rights--has been processes of social influence.
Post and Siegel rightly call this a democratic constitutionalism. This process of social influence is “democratic” in the sense that it is interactive and participatory on multiple levels. But it is not “democratic” in the sense that judges are responding directly to elections and the wishes of either politicians or public opinion. Nor is it "democratic" in the sense that judges are mirrors or representatives of the public. The courts are players in constitutional politics, not mirrors of public opinion. Nevertheless, they live in the same culture as politicians and ordinary citizens. When judges make decisions like Obergefell, there is often significant public support for what they do, but there is also usually a substantial segment of public opinion that strongly disagrees—and there are usually politicians who view the Court’s decisions as an opportunity to mobilize against the Court and change constitutional common-sense. Successful mobilization, in turn, may lead to changes in attitudes about the wisdom of constitutional precedents, and so the process continues.
What happens when Most of society is wrong and doesn't evolve fast enough?