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Obergefell and the Limits of Judicial Supremacy
In Obergefell v. Hodges, the Supreme Court used its power of judicial review to legalize gay marriage throughout the nation. In one fell stroke, five Justices short-circuited the democratic process, which was gradually removing barriers to gays, and swept aside the Constitution’s reservation of family-law matters to the states. Even while they may disagree on gay marriage, most Americans believe they must obey Obergefell because the separation of powers gives the Supreme Court the ultimate authority to interpret the Constitution.
Prominent defenders of traditional marriage, however, have gone beyond the usual criticism of a mistaken judicial decision to attack the Supreme Court as an institution. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Mike Huckabee, former governor of Arkansas and GOP presidential candidate. “We must resist and reject judicial tyranny, not retreat.” Fellow candidate and Republican senator Ted Cruz has proposed constitutional amendments not only to overturn Obergefell, which other candidates support, but to subject Supreme Court justices to periodic elections.
While these politicians, I believe, have overreacted, they hit upon an important truth about our Constitution. Contrary to popular belief, Obergefell does not settle the question of gay marriage, because the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.
Many of our greatest leaders have understood that, in a self-governing republic, the people and not the courts must settle fundamental constitutional issues. President Abraham Lincoln, for example, believed that Dred Scott only decided a controversy between two parties before the court and could not bind the president and other officials. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” Lincoln wrote in his first Inaugural Address, “the people will have ceased to be their rulers.” Instead, the people will have “practically resigned their government into the hands of that eminent tribunal.” Lincoln was right: the Civil War, not the Supreme Court, resolved the question of slavery.
While the Constitution does not grant the federal courts the final word, it implicitly gives the courts a right to interpret the Constitution. As Chief Justice John Marshall famously observed in Marbury v. Madison, which established the power of judicial review, “it is emphatically the province and duty of the judicial department to say what the law is.” When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress. The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law.
But the Constitution does not vest the courts with the exclusive right to interpret its meaning. It nowhere says that the Court’s reading of the Constitution bears superiority over the other branches of government. As Thomas Jefferson wrote to Abigail Adams in 1804 to explain his decision to drop existing prosecutions under the Sedition Act, “nothing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.” Indeed, the separation of powers means that the legislature and the executive also must interpret the Constitution in the course of performing their own unique functions. Congress should not pass bills that violate its understanding of the Constitution; the president should not sign bills that violate his.
Rather than give any one branch the final word, the Constitution creates three branches that can compete over its meaning. The separation of powers means not only that the President, Congress, and the Supreme Court are separate, but that they are also independent of one another. According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”
Opponents of gay marriage are summoning this deeper understanding of the separation of powers to resist Obergefell. But the Constitution itself provides less drastic means than attacking the Court’s independence. Rather than subject justices to term limits or elections, critics must persuade the American people that the courts have overstepped their proper role by reading their personal preferences into the Constitution. They can change Obergefell’s result by seeking judicial nominees who will restore primary control over family law and marriage to the states. Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not.
Crossposted at National Review Online
Published in Culture, Law, Marriage
Very enlightening John.
First, the SCOTUS did not “legalize” gay marriage. It mandated it.
Second, you make a very well-reasoned argument. Unfortunately, it is a moot point because the only politicians who would possibly have done something to oppose this mandate are, in fact, grateful to the court for taking the responsibility to make a decision away from them.
Isn’t the most obvious remedy to this judicial overreach an exercise of the powers that Art. 3, Sec. 2 gives to the Congress to limit the Court’s jurisdiction, in this case returning the regulation of marriage to the states? Isn’t this the immediate response that supporters both of federalism and of traditional marriage ought to be calling for?
Or congress could just overrule Marbury v. Madison via statutory law. Although that would have a lot of unintended consequence so I don’t know if it would be good.
Since the Supreme Court has walked away from the Constitution and from precedent, what authority remains? What rightful authority? [Insert mechanistic, button-pressing, cheese-seeking argument here]
So, the only recourse we have against an overreaching Supreme Court is to wait for a bunch of Justices to die and hope their replacements will be better?
Well, that’s reassuring.
Very discouraging advice. In physics the normal force is orthagonal and equal to the force exerted. It is why some conservatives want to do something now that is results oriented. The heavy lifting of decades of debate will be left to private entities to carry. It was the Right to Life movements combined with medical advancements that pushed more abortion controls, not politicians. As stated above, there are a lot of politicians glad this was taken away.
I tend to react more forcefully against something when I am told by other adults what to do or think. I’m not a good fellow traveler.
Earth to Prof Yoo. 40 years after Roe we still don’t have a Human Life Amendment, justices who limit themselves to adjudication and not legislation, or for that matter a “political or cultural environment that makes a return to the courts proper role possible.”
Especially not a political environment because there is not the remotest possibility that the Republican Party is going to do the right thing (defined as doing what they said they would do during a campaign if they actually get elected). Kennedy and Roberts were both appointed by Republican presidents.
Even talk of constitutional amendments of any description by Republican candidates are nothing more than mouth music played to lull the rubes in the primaries. Amendments or legislative fixes ain’t going to happen because 1. the Republicans don’t have the gonads for it, 2. They’ll never get 60 votes in the Senate.
This is going to play out in one of three ways:
1. A continued descent into tyranny. It’ll be comfy tyranny until the money runs out but tyranny just the same, especially if you don’t give fulsome approbation to the diktats of the Progressive mob. [99 % likely]. The center-right commentariat wankerati will do a lot of hand-wringing, but as long as their piece of the privilege pie isn’t too degraded, they won’t get terribly upset about it.
2. A group of states will get fed up to the point where they secede (my prediction would be Texas and the Gulf states lead the way). Secession was settled by force of arms, never legally. Depending on who’s in charge in Washington it might stick this time. [0.99 % likely]
3. An Article V Convention of States succeeds in reeling in the judiciary and making other essential amendments to the Constitution [0.01 % likely].
If, please God, the Republicans do succeed in holding congress and taking the White House, it will do nothing more than slow the descent of the downward trajectory onto which Obama (with help from previous administrations) has launched us. If Clinton wins, the downward descent will continue, probably past the point of no return.
In our waiting for the culture to change the abortion decision of over 55 million babies have been aborted. I think that John’s line of reasoning is seriously flawed.
Must the innocent victims of this decision wait over 40 years for culture to wake up enough to pack the court for this decision to be over turned? Must the culture of marriage be further suppressed and driven from public life? The innocent suffer as you give over deference to judges who refuse to follow their oath of office. They need to be impeached.
Meanwhile, Catholic adoption agencies are abolished nationwide. Kids who might otherwise be placed in a stable, mom/dad household are now subject to the (amoral) whims of state(?) agencies. We’re to tolerate decades of this?
Well, I guess we stand aside while a million babies are aborted every year. Why should orphans expect any better? Just so long as adults get what they want.
We’re a nation of spoiled brats. For the second time in my adult lifetime, I’m ashamed of my country. I’ll let you guess when the first was.
SoDakBoy: Unfortunately, it is a moot point because the only politicians who would possibly have done something to oppose this mandate are, in fact, grateful to the court for taking the responsibility to make a decision away from them.
Exactly. Legislators are free to skate from their responsibilities. And extremists from both sides will be using this for a recruiting tool for the next 40 years. What is the saying? Controversial rulings make bad law? But they make excellent rallying cries. Abortion could’ve been left to the states. Instead, we have people arguing paper thin stuff about penumbras and emanations. Kennedy’s pabulum will be quoted long after great jurists have been forgotten.
Thank you for this, John. I have no background in law, and I’ve never understood how it came to be that the Supreme Court claimed this power for itself. As far as I’ve been able to tell, nothing in the constitution grants it that power; the power was just assumed. If that’s not the basis for oligarchy, I don’t know what is, particularly when you consider that its members are appointed for life.
And then there’s this. Quoting Kevin Williamson from the 7/20/15 issue of National Review:
Somewhere between her bat mitzvah and her Senate confirmation hearings, Elena Kagan, a nice Jewish girl from the Upper West Side, must have browsed the works of the 14th-century Islamic scholar Ibn al-Munir: “War is deceit,” he wrote, “and the most complete and perfect war waged by a holy warrior is a war of deception, not confrontation, due to the latter’s inherent danger and the fact that one can attain victory through treachery.” How else to explain how she went from her 2009 declaration— “There is no federal constitutional right to same-sex marriage,” words she put in writing and revisited to assure senators that that was in fact her view—to precisely the opposite position—discovering a national fundamental right to same-sex marriage lurking about the Constitution—in only a few years?
Leftists will flat out lie to advance their policy objectives. It’s time we realize that we are not dealing with people who act in good faith. It’s time to stop giving Leftists/Progressives/Liberals (whatever you want to call them) any benefit of the doubt.
The only supreme power of constitutional interpretation that the Court has is in its own courtroom. It can refuse to convict someone charged under a law it deems unconstitutional. At that point, the law is effectively void because any further attempt to prosecute someone under that law would have to happen with no due process in court, which is itself unconstitutional. Could the executive power do that? Yes, but it would likely result in impeachment.
But Obergefell is a different kind of case. The ruling in that case doesn’t acquit someone. Rather, it orders another branch of government to take an affirmative action: grant marriage licenses. One branch of government simply does not have the power to order another branch to do something. It can order such an action by another branch, but the Constitution does not provide any recourse if the other branch declines to comply.
Seems we are approaching “Let him enforce it” / “How many divisions” territory.