Matthew Cooper's June 27, 2015 Newsweek article cogently cautions that an activist Supreme Court threatens to undermine the integrity of the Constitution: "The Supreme Court’s sweeping ruling on gay marriage marks a stunning expansion of gay rights and also provides more proof that the high court is one of the most revolutionary (and hypocritical?) in living memory, and continues to infuriate and hearten both left and right."
Liberals celebrate the gay marriage ruling but Cooper notes, "Liberals decried the activism of the Roberts rulings on voting rights and campaign finance—rulings in which their beloved Justice Kennedy was in the conservative majority—just as conservatives are denouncing the gay marriage ruling today. Left and right argue that the rulings they favor were logical extensions of previous holdings rather than the creation of new law out of thin air."
The point is that partisans from both sides of the political spectrum praise rulings that go in their favor and criticize rulings that do not go in their favor but neither set of partisans seems to fully grasp the potential dangers of an activist court. Chief Justice Roberts articulates this point very well in the opening lines of his Obergefell v. Hodges dissent:
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial "caution" and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice." Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution "is made for people of fundamentally differing views." Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Accordingly, "courts are not concerned with the wisdom or policy of legislation." Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own "understanding of what freedom is and must become." Ante, at 19. I have no choice but to dissent.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
Roberts then notes that the ruling hearkens back to the bad old days of the Lochner era, when the Supreme Court "struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that '[t]he criterion of constitutionality is not whether we believe the law to be for the public good.' Adkins v. Children's Hospital of D. C., 261 U.S. 525, 570, 43 S.Ct. 394, 67 L.Ed. 785 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected 'liberty,' the Lochner line of cases left 'no alternative to regarding the court as a ... legislative chamber.' L. Hand, The Bill of Rights 42 (1958)."
Roberts adds, "Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them 'unwise, improvident, or out of harmony with a particular school of thought.' Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955)."
Needless to say, liberals did not like the activist Lochner era Supreme Court very much. President Franklin Roosevelt pushed through New Deal legislation in part to undo the consequences of some of the Lochner era rulings--and he threatened to "pack" the Supreme Court to make sure that the judiciary would not interfere with his plans.
Roberts believes that the Obergefell ruling will have long-standing and unintended (or, at least, unwelcome) consequences because of the harsh way that it depicts those who do not support gay marriage:
Perhaps the most discouraging aspect of today's decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" of laws codifying the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. Ante, at 19.
The majority reiterates such characterizations over and over. By the majority's account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States' enduring definition of marriage—have acted to "lock ... out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's "better informed understanding" as bigoted. Ante, at 19.
In
the face of all this, a much different view of the Court's role is
possible. That view is more modest and restrained. It is more skeptical
that the legal abilities of judges also reflect insight into moral and
philosophical issues. It is more sensitive to the fact that judges are
unelected and unaccountable, and that the legitimacy of their power
depends on confining it to the exercise of legal judgment. It is more
attuned to the lessons of history, and what it has meant for the country
and Court when Justices have exceeded their proper bounds. And it is
less pretentious than to suppose that while people around the world have
viewed an institution in a particular way for thousands of years, the
present generation and the present Court are the ones chosen to burst
the bonds of that history and tradition.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Roberts is right about all of this but the Obergefell case is not the first time during his term as Chief Justice that the Supreme Court has taken an activist role. Cooper writes, "The activism of the Roberts court stands in stunning contrast to the Chief Justice's claim during his 2005 confirmation that he wanted a humble court and saw himself as only 'an umpire' calling 'balls and strikes.'" Copper concludes, "...the activism of the justices in Roberts’s court—whether it yields liberal rulings like gay marriage or conservative ones—seems here to stay."
Justice Antonin Scalia, joined by Justice Clarence Thomas, agrees with Chief Justice Roberts' Obergefell dissent but penned a separate, additional dissent "to call attention to this Court's threat to American democracy."
Justice Scalia characterizes the majority opinion as "a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.' A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
Justice Scalia exposes the underlying flaw of the reasoning behind the majority opinion:
But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a "fundamental right" overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their "reasoned judgment." These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.
Justice Thomas, joined by Justice Scalia, authored his own dissent, beginning with these words:
The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
Justice Thomas asserts that the petitioners and the majority opinion misrepresent "liberty" as it is meant in the Constitutional context:
Petitioners' misconception of liberty carries over into their discussion
of our precedents identifying a right to marry, not one of which has
expanded the concept of "liberty" beyond the concept of negative
liberty. Those precedents all involved absolute prohibitions on private
actions associated with marriage. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967),
for example, involved a couple who was criminally prosecuted for
marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5
They were each sentenced to a year of imprisonment, suspended for a
term of 25 years on the condition that they not reenter the Commonwealth
together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978),
involved a man who was prohibited, on pain of criminal penalty, from "marry[ing] in Wisconsin or elsewhere" because of his outstanding
child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987),
involved state inmates who were prohibited from entering marriages
without the permission of the superintendent of the prison, permission
that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.
Perhaps the last word should go to Justice Samuel Alito, whose dissent was joined by Justice Scalia and Justice Thomas: "Most Americans—understandably—will cheer or lament today's decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends."
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