A common complaint among conservatives attends to the improper role of the judiciary in modern American political life: the activism that sees judges rushing in where politicians fear to tread. The hard questions, the hard decisions that actual statesmen (as opposed to mere politicians) would be expected to make are shunned – too controversial, potentially too costly in the next election, a threat to the projected life-long vocation of a career politician dedicated wholly to preparation, running, and consolidation of a permanent campaign. Better to let the Executive rule by regulations, his power suffused through the myriad apparatchiki in bureaucratic succession.
But worse yet, encourage the judges to over-reach and hand down not judgments but fiats, deciding not according to the laws of the legislature but by the lights of what they deem to be right and just. It is not the opinion of some benevolent despots robed in black but the Constitution that must steer their decisions. This was a favorite topic of Thomas Jefferson, who said, among his many quotes on the subject, "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy."
Yet time has seen this republic march progressively (yes, pun intended) toward just such a situation, and a major indicator of the ability of the judiciary to create law, in the same manner as Roe vs Wade, was seen yesterday in the repeal of the Defense of Marriage Act (DOMA) as a result of the decision handed down with United States vs Windsor.
First, I am fully in favor of the traditional definition of marriage as being between one man and one woman, though not perhaps for the reasons that you would suspect – a subject for a later posting. But here I am writing about how the Supreme Court in the opinion of Justice Kennedy has abrogated to itself an excuse to step in to express a judgment in an area that was not the purpose of the case.
Justice Antonin Scalia
But let me defer, as I often like to do on this subject, to the always erudite and compelling reasoning of Justice Scalia writing, in addition to Chief Justice Roberts, in the dissent, and a particularly scathing one at that (starting at p35).
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
The Court is eager – hungry – to tell everyone of its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the "judicial Power," a power to decide not abstract questions but real, concrete "Cases" and "Controversies." Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right: and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? ...
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a "'bare ... desire to harm'" couples in same-sex marriages. ...
To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. ...
It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here – when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.The great jurist and Supreme Court Justice Oliver Wendell Holmes is credited with the original quote that "Great cases like hard cases make bad law." But let us not stop there; he continued, "For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." His opinion can otherwise be summed up with the story of his departure one evening from the residence of a friend, with whom he had enjoyed a delightful dinner and engaging conversation. As his carriage pulled away from the entrance, his friend, seized by a feeling of enthusiasm perhaps fueled by the after-dinner brandy, called out to him to "Go forth and do great things!" Holmes stopped the carriage and leaned out to reply, "No. I go forth to follow the law."