In response to the U.S. Supreme Court’s same-sex marriage decision, much of social media instantly descended into a mob of gleefulness, unrestrained by reason or critical thinking. People were so ecstatic at the arrival of nationwide same-sex marriage that they could not realize what they were losing in the process.
Last Friday, the Supreme Court stole from them, and all of us, something fundamental: the right to govern ourselves.
The decision last week was not about whether gay marriage is a good or a bad idea. Reasonable people can disagree about that. The question was: who decides?
Do the people decide by debate and deliberation, through referendums, legislative action, protests, and other democratic activity? Or do nine lawyers decide the issue by majority vote, without accountability to the people?
Justice Kennedy’s opinion — which reads like a sociological treatise rather than a legal judgement — is nothing less than a sweeping assertion that constitutional text and history can be dispensed with when making judicial determinations.
All that really matters is which rights the Court sanctions and which it does not. As long as it can get away with overturning democratically-adopted laws by inventing new “liberties” out of thin air, it will do so.
This is a prescription for the end of democracy, as issue after issue will be removed from the arena of democratic choice and decided by judges. Just as it has now become impossible for any state to define marriage as the union of one man and one woman — a definition largely uncontested until 15 years ago — so too will other contentious issues be resolved by the decree of a Supreme Court impatient of democratic change. A Court with no special expertise on moral and policy questions has empowered itself to resolve political disputes over which it has no proper authority for 320 million Americans.
In this newly-minted world imposed upon us, no law, no matter how popular or long-standing, is safe from judicial nullification. Our democracy is now at the mercy of how activist the Supreme Court decides to be, from case to case. And there is little we can do to stop the judicial branch from doing as it pleases. A Court willing to cast aside a definition of marriage that was uncontroversial in this society until a few decades ago will ignore anything that constrains it from imposing its will on our country.
Those who approve of same-sex marriage might not mind judicial oligarchy now, since it has just produced a policy victory for them. Others might be similarly pleased if the Supreme Court invented a liberty that no individual be required to pay more than 15 percent of his income in taxes, even if the public did not support the creation of such a right.
But that is not a constitutional system of self-government. A bad political system is not made significantly better by the fact that it sometimes produces a result you like.
Rather, the American Constitution preserves freedom by dividing power between three branches of government, ensuring that no one branch has the ability to seize absolute authority. A judiciary powerful enough to provide every right you desire also has the power to take your rights away.
Our Founders understood that such authority must never be given to one of the branches alone. That is why they never gave the Supreme Court a general and explicit power of judicial review. James Madison wrote in Federalist Paper 49 that no branch of government could “pretend to [have] an exclusive or superior right of settling the boundaries between their respective powers.” Madison understood what many fail to grasp today: that granting a branch of government the ability to decide the scope of its own power is essentially the same as providing limitless power. When functioning properly, the Court exercises the authority to find laws unconstitutional only when absolutely necessary to resolve a legal dispute before it. The Founders would not be able to recognize the Court as it behaves today.
The Supreme Court is willfully neglecting its true function: to interpret the law rather than make it. It abuses its power whenever it imposes its policy preferences on the country while pretending to use the law as the basis of its decisions. As these abuses continue, it will become more obvious to the citizenry that the Court is making the law up as it goes along. This realization will sharply dampen the public’s respect for the Justices, making citizens skeptical that the Court deserves the power to rewrite our Constitution whenever it pleases.
Justice Scalia’s dissent contains an ominous warning about what will happen if the pattern of decisions “unabashedly based not on law” continues. At the most basic level, the Court’s decrees are just words on paper. They require assistance from the other two branches and the states to implement. It is the people’s trust in the Court as the impartial guardian of the rule of law that makes them so willing to abide by decisions they may sometimes disagree with.
If that trust further erodes, Justice Scalia writes that the Court “might soon learn of its impotence,” which could come in the form of defiance of the Court’s rulings. While I do not think we have reached the point where such disobedience will be or should be utilized, the Justices themselves have put us on a path that may lead to precisely that.
The Court would be well-advised to change course, not just for the country’s sake, but for its own.
Julius Kairey is a 2015 graduate of Cornell University School of Arts & Sciences, majoring in Government, and will be attending law school in the fall.DONATE
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