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SCOTUS and the Age of the Imperial Judiciary
In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process? Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.
Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.
Some will respond that society was moving in the direction of gay marriage anyway, and that the court was following the popular will. If that is the case, then the court should allow the political process to work. Justices have no special expertise in divining the wishes of the American people. Indeed, as Justice Antonin Scalia noted in dissent, the justices are a strange bunch. They mostly hail from the same regions of the country, went to the same schools, hold similar religious beliefs, and have the same professional backgrounds. An isolated, expert Supreme Court makes perfect sense when the Constitution defends minority rights against the oppressions of the majority, but it makes no sense when settling policy reserved for democratic politics.
In its disregard for process, the gay marriage case is of a piece with yesterday’s decision in King v. Burwell, where the Court believed it had the power to rewrite Obamacare to make the law work more effectively. Though tackling very different legal questions, both cases show a disregard for democracy and a judicial arrogation of power which the Constitution does not authorize.
While Chief Justice Roberts dissented in the gay marriage case today, he is no less the responsible for this state of affairs. He wrote the majority in King that rewrote Obamacare, and three years ago he saved Obamacare by rewriting it again to save it from constitutional challenge. His chief justiceship will not just be known for bailing out Obamacare and embracing gay marriage, but for its blessing of an imperial judiciary.
Published in Law, Marriage
The difference that is most disturbing to me between the two decisions is this:
The O-care decision is the less consequential because the issue could still be addressed legislatively as it was “merely” a case of statutory interpretation. The much more consequential one (declaring gay marriage a right), now and for the long haul, is the gay marriage one, which policy question is taken away from all, as it is now enshrined as a “fundamental” right inhering in the Constitution.
God help us all.
The very first sentence of the opinion is factually inaccurate, so the rest of it is sure to be, as Scalia might say, jiggery-pokery. The constitution makes no promises of any sort. It merely details the appropriate dispensation of power from the sovereign people to their government. To see it the way Kennedy does is to make it a magic tablet onto which anything may be written.
My local paper has put up an editorial that applauds Justice Roberts as a champion of judicial restraint for the Obergefell decision, because he chose the path that would result in the least commotion.
The Christian talk radio talkers were pointing out that, on Thursday Roberts releases a ruling that chooses on the basis of stirring up the least commotion, but then on Friday releases a ruling that will stir up even more commotion.
The amount of ensuing legal wangling should not be the basis on which these matters are decided.
“Under the Constitution, judges have power to say what the law is, not what it should be.” — John Roberts in Obergefell v. Hodges. He’s obviously not read John Roberts in King v. Burwell.
To me it just suggests that it’s a Kennedy opinion.
Although I’m sad that they did it, I do feel slightly impressed by the lack of ego on the part of the four liberals. It seems likely that the cost of getting that fifth vote was that they wrote no opinions and got none of the glory. Worse still, they must have known that the opinion would look like this, and that their names would forever be associated with it.
I believe Scalia when he says that he couldn’t pull the same trick. I don’t think I could.
It isn’t footnoted, but I think it’s a reference to his famous argument in Casey that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Because if there was one argument guaranteed to add dignity to proceedings and reduce anger, it’s “we should have SSM because it’s basically like abortion.”
Applesauce.
“The federal government can do most anything it wants” – Rep. Pete Stark (D), CA
He was right, apparently, so yeah, it is that magic tablet now. The law isn’t about text, the law is about the prevailing sentiments of the court. How that sentiment gets to become law is almost irrelevant. They get to say what the law is, and so it is.
Or, “I’ll make it legal”, as a certain Sith Lord once said.
I was thinking Bullsh… well, you get the idea.
It’s from Scalia’s dissent in King. His real meaning was very obvious. It’s my new CoC friendly word for a couple of things that would get me redacted.
I found a picture of Kennedy’s Constitution:
I’ve known for a long time that we had a “living Constitution,” i.e., no Constitution. It now appears that we have “living statutes.”
Lincoln went to war to defend the Constitution. If the paper survives but the method of government falls, the Constitution is gone.
No argument, no opinion, no legal precedent — no interpretation makes the utterances of the Chief Justice Constitutional. He is in contravention of his oath, and I do not depend upon the opinions of others to know what is true, just as I do not await permission from the government to object to this usurpation.
Nothing in recent developments relieves officers of the United States military from their oath to defend the Constitution against all enemies, foreign and domestic. The whole point of being an officer is a commission to exercise judgement and take action accordingly. Officers are not beholden in their oaths to follow the orders of the officers appointed over them, or of the President. Instead, for officers, these are matters of law, and of regulation. Every officer is charged with reflecting upon the Constitution and considering their many duties in the light of that knowledge.
While obeying orders and a heavy presumption of fidelity on the part of one’s chain of command are essential, literally indispensable elements of an officer’s duty, the object of that duty ever remains the Constitution. Not the military, not the government, not the offices or officers of that government, and not even the country itself. Solely and always, the Constitution.
Well now we seem to have a situation on our hands worth talking about on those terms.
I think Roberts just doesn’t want Obama to get all the credit for fundamentally transforming America. He wants SCOTUS to be right there in the mix. He has no principle other than expediency.
Looking in from the outside I have long been aghast at the politicisation and factionalisation of the US Supreme Court . My strong impression is that the political/media classes acquiesce in this rotten system in the belief that each side will get its turn.My other strong impression is that the progressive/Democrat hacks tend to have the weaker arguments but are far more disciplined than their conservative counterparts.So they’ll keep on winning most of the big stuff.
And if that expression should be unlawful, I your magnanimous Chief Magistrate will adjust the law!
As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process? Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.
This—YES.