In 1820, Thomas Jefferson wrote a letter to a prosperous merchant, in which he discussed his views about the proper role of the judiciary in the American constitutional system. In his letter, Jefferson made a famous observation:
You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.
In his first inaugural address in 1861, Abraham Lincoln echoed these sentiments, in reference to the Supreme Court’s infamous decision in the Dred Scott case:
… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
In 2015, it is now more clear than ever, that Jefferson’s and Lincoln’s predictions have been fulfilled, most recently with the latest ruling on the redefinition of marriage.
The Supreme Court’s impatience with the democratic process is well-established, and it has long arrogated to itself the presumed authority to substitute its political judgement for that of the people or Congress. One need only recall the astonishingly arrogant passage from the Casey abortion decision, in which the Court claimed almost sacred significance to its own lawless decisions:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
Of course, the Court’s rulings in its abortion cases have no basis whatsoever in the actual Constitution, or the tradition of American law, much like their bizarre rulings that essentially re-write acts of Congress to better suit their preferred result (e.g., the Affordable Care Act cases, NFIB v. Sibellius and King v. Burwell). Just so with the series of Supreme Court decisions relating to the radical redefinition of marriage — first in United States v. Windsor, and now with Obergefell v. Hodges.
Little needs to be said about this latest decision by the Court. This Court has a propensity to make things up as they go along, to satisfy their policy preferences or to follow public opinion. Reasoned legal argumentation really has no great sway over the Court on these issues, so there’s no reason to treat their decision as if it had anything to do with law at all.
There is no question that over the past few years, public opinion has shifted strongly in favor of redefining marriage. But the resolution of such a weighty policy argument should not be left to the least democratic branch of the government. It should be hashed out in the rough and tumble of politics. That is what was happening, prior to the Supreme Court’s first usurpation, in the Windsor case. But democracy is apparently no longer an option, when the post-modern Zeitgeist of sexual liberationism demands its way.
And so, we should really stop pretending. When it comes to certain important issues about the nature of the human person and our society, we really no longer have a rule of law or of reason, but a rule of lawyers — a majority of five, to be precise, all of whom attended a few elite Eastern law schools. Jefferson’s fear of the despotism of an oligarchy has fully come true.