"Just who do we think we are?" Chief Justice Roberts

"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. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."  Thomas Jefferson writing as president of the United States.  Wiki on the US Constitution

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"Roberts invokes the founders of the US, writing, "Those who founded our country would not recognize the majority's conception of the judicial role ... They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges."

Notably, though, when seeming to address people who would celebrate Friday's decision, Roberts is clear that he does not have a personal problem with the outcome, just the process of getting there:

Many people will rejoice at this decision, and I begrudge none their celebration ...

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."

Chief Justice John Roberts in his dissent in Business Insider

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 "Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court," Scalia said.

"This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

The conservative justice railed against his fellow justices, calling the majority opinion "egotistical" and pointing out that the justices were a homogeneous group that didn't represent the people. As proof, Scalia pointed out that many went to the same law schools, and none were evangelical or protestant Christians."  Scalia in his dissent in Business Insider

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 Jefferson wrote the first quotation  above as an apology for his failure to act to stop Chief Justice John Marshall's successful grab for the power of judicial review for constitutionality of government actions or laws. 

There is nothing in the constitution that grants the federal courts the power of judicial review, nothing.  Jefferson's own view was that the three branches of the federal government were completely equal and that each was responsible for judging the constitutionality of its actions.

But, at the very end of the John Adams administration, Adams appointed a man named Marbury to be a justice of the peace in the District of Columbia.  This is a minor office.  James Madison, Jefferson's new Secretary of state declined to carry out the appointment and Marbury sued before the Supreme Court on the basis that Madison lacked the constitutional  power to negate Adams' appointment. 

John Marshall ruled in favor of Marbury (a fellow member of the defeated Federalist Party) and Jefferson, distracted by the business of his initial days in office as President, let Marshall's ruling go unchallenged and Marbury got the job.

This is how the federal courts came to be the "oligarchy" of which Jefferson complains.

I should make it clear that I am completely indifferent to the outcome in the same sex marriage case.

What bothers me is the assumption of this much power by the "five unelected lawyers."  pl  

https://en.wikipedia.org/wiki/United_States_Constitution

https://en.wikipedia.org/wiki/Marbury_v._Madison 

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

http://www.businessinsider.com/chief-justice-roberts-on-gay-marriage-ruling-just-who-do-we-think-we-are-2015-6

http://www.businessinsider.com/scalia-gay-marriage-dissent-2015-6

Comments

[William R. Cumming]

Thanks for this POST P.L.!

Whatever the merits of the ruling IMO the rapidity with which same-sex marriage opinion has shifted it may well have as much to do with the decline of the institution of marriage in Western Society as a key societal and cultural glue since WWII.

Divorce rates astoundingly high IMO largely due to disregard for the special needs of parents of young children. Raising children a very difficult task in the 21st Century for many reasons.

[Tyler]

Cool, bring on the end a bit faster. Next step is going to be churches being forced to marry homos or else lose their 501c status.

Where was Roberts with the King ruling when he decided that words meant whatever SCOTUS wants whenever SCOTUS wants them to mean it? When is a state not a state? When SCOTUS decides it has to save the ACA.

The highest law in the land right now is that of GoodFeels - to hell with he concept of the Constitution.

[optimax]

I don't begrudge gays their new found freedom to marry and divorce. I'm just sick of seeing two men kissing springing up every time you look at the media. Two good looking women kissing is a different story. Why can't they show more of that?

[kao_hsien_chih]

Col and others,

No matter which side of this political divide a person might be on, a 5-4 decision on a divisive issue like this strikes me as awfully dangerous. In the Brown v Board of Education, there was a good reason the Supreme Court was insistent on having a unanimous decision. The 4 dissenting judges represent a very large minority of the American public and it is not politically wise, no matter what one's political views might be, to run roughshod over them. We are playing with fire when we combine narrow political victories/defeats with self-righteous and antagonistic rhetoric.

[turcopolier]

optimax

My post is not about gays or their "rights." pl

[Babak Makkinejad]

Yes, I agree, very likely the Catholic Church would be the first target.

[Babak Makkinejad]

Col. Lang:

So US is evolving/devolving into a form of Platonic Republic - like the Islamic Republic of Iran.

The difference being US will have a Council of Supreme Jurisprudents while Iran has only a single person occupying that office - for now.

I wonder if that is because of the role of the obscurantist legal experts common to both societies - the esoteric body of legal precepts need experts in that arcana for interpretation and understanding.

UK also has a supreme jurisprudent but she does not exercise her powers.

[DC]

The gay marriage decision is no more dangerous than Roe v. Wade. A lot of folks didn't like Roe, either -- still don't like it -- but that, folks, is the way our democracy and the process of "judicial review" has worked for quite a long time now. So, we're going to cite dissatisfaction with Marbury v. Madison as a justification for not liking this decision, either? Go right ahead, I guess...though it seems rather pointless from a reality-based perspective, imo, unless you have a really strong belief the country has been off-track for a few hundred years or so now. Instead, how about recognizing that in a democracy, "you win some, you lose some," and move on to problems that are really worth fighting over.

[Larry Kart]

Seems to me, per this article by Cass Sunstein, that Chief Justice Roberts was talking out of one side of his mouth re: judicial restraint in his decision on the Affordable Care Act and out of the other side of his mouth in his dissent on the same sex marriage case the following day. Specifically, implicit in Roberts' ACA decision and its attempt to overturn the so-called "Chevron principle” once and for all, is the claim that the "courts should interpret the law on their own without paying the slightest intention to what executive agencies say…. [The ACA decision] is a strong assertion of the court’s, and not the executive branch’s, ultimate power to say what the law is.”

http://www.bloombergview.com/articles/2015-06-25/the-catch-in-the-obamacare-opinion

[turcopolier]

DC

What you are accepting is a descent into the despotism of judicial majorities unrestrained by legislative authority. pl

[cville reader]

Just as in Roe v. Wade, the Supreme Court should have let the states decide the issue, rather than discovering magical rights where the language doesn't specify them.

The bigger threat now is that Court has put freedom of exerice of religion on a direct collision course with this new found right.

No matter what your personal belief about the matter is, it will become increasingly difficult for religiously affiliated institutions (charities and schools) to reflect their own religious views in various policies ( married housing on campus, adoptions services, etc)

Also, I see big problems ahead for public school systems.

All of this will further inflame a populace that seems to be developing irreconcilable differences. The states should be the safety valve for this kind of problem. Too bad Justice Kennedy seems to have eliminated that possibility.

[turcopolier]

Larry Kart

I do not see the equivalence in Roberts' refusal to accept a textual drafting error and the creation of a "right" out of whole cloth and political opinion. pl

[cville reader]

You really are seriously underestimating the magnitude of this problem. And it isn't going to go away any time soon.

[cville reader]

Not from what I have read. That is because they are a clearly defined institution. Evangelicals, which are far more loosely organized, will be the first victims.

[Bobo]

These recent decisions leaves one to ponder. To me the decision on " disparate impact" where bias does not need to be intentional was the most nonsensical while the ACA was more common sense and the other one should of been left to the states where it belongs. But that is my view.
These same unelected lawyers decided that a corporation was an individual with rights. Thus xyz company can toss a boatload of money to a politician to get the time of day that the you or I never will unless we also toss a boatload of money.
Somehow what the framers of our Constitution intended is coming apart at the seams. Part of the problem is we have a Congress more involved in gamesmanship than handling the serious issues of the day in a reasoned manner. Somehow our society has become fractured into the varied gimme groups and they all head to the Supreme Court for what they want while the rest of us plod along.

[DC]

If you mean the alleged "constitutional problem" then no one with any education in U.S. history could under- or over- estimate the issue, as it's been with us for quite a long time. A long time. And I see a great many worse problems affecting the U.S. than that one, as the long list of problems goes, no matter how one might care to rank them, assuming of course the ranker is sane.

But, if you mean the root of the problem is "gay," then I suggest the best course of action would be to move to a less pluralistic society, in order to be comfortable. Uganda perhaps; or any of the Gulf Arab states might do.

[DC]

Col, honestly, I think you are over-reacting to the current nature of the Court. There's nothing new going on here if you look at the history of the Court. Majorities and minorities wax and wane; and the nature of multi-judge courts is that they vote on the cases. One bloc wins; the other loses. And so it goes...

[turcopolier]

DC

You are way off topic. I specifically said this was not about the outcome in re what seems to be your favorite issue. Yes, I think the present authority of SCOTUS in judicial review is excessive and undemocratic and should be restrained. The chief justice agrees with me. There are no divinely decided moral positions in US law. Is this a democratic federal republic or not? Let me guess, you have problems with equal states' representation in the US Senate, perhaps with the electoral college? pl

[cville reader]

Perhaps your condescension is impairing your insight.

What you see may not be what others see.

[DC]

No, I'm not that radical, or radical at all (at least, I don't think so!). From the New Yorker:

"Ultimately, though, the case is pretty simple. [ ] The government confers a bundle of rights on individuals who choose to marry. The constitution’s guarantee of equal protection forbids any state from withholding those rights from the class of people who happen to be gay. End of story."

http://www.newyorker.com/news/daily-comment/god-and-marriage-equality?intcid=mod-most-popular

The main point I was seeking to express is that this case (Obergefell) fits squarely within the means in which the Court has always interpreted and applied the Constitution, when you take the long view. I see it as fairly close to the principle enforced in Loving v. Virginia (1968). You seem to disagree; but it would be interesting if you have any principled reason "why" other than a general dissatisfaction with our tradition of judicial review.

[turcopolier]

DC

IMO to accept the present polarization of the federal courts in judicial review is a serious mistake. pl

[ex-PFC Chuck]

I am struck by the obliviousness of Roberts and Scalia to the irony of their whining about the tyranny of the court majority. It's not that I doubt that it's an issue that should be discussed. It's that they don't mind at all when they and their Federalist Society confreres happen to be in that majority, which has been the case more often than not over the past half century or so. Perhaps the most pivotal example in terms of its impact on subsequent events was the Bush vs. Gore decision in December, 2000. That majority, of which Scalia was a part, played fast and loose with the Constitution, its amendments, and subsequent law and court decisions which had quite clearly left it to the individual states' political and judicial processes to determine what were and were not valid votes. They knew they were playing fast and loose and that some day the shoe might be on the other foot. The tell was this sentence in the majority opinion: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." In other words, this decision is not to serve as a precedent.

Contemplation of the impact of the Bush vs Gore decision leads us into counterfactual history territory, a subject for another time, if ever.

https://en.wikipedia.org/wiki/Federalist_Society
https://en.wikipedia.org/wiki/Bush_v._Gore

[turcopolier]

DC

"has always interpreted and applied the Constitution." "Always" is untrue. There was no such function before Marbury vs. Madison. Only Jefferson's inattention allowed this function to be seized by SCOTUS. There is no such thing as "settled law." This power should be restrained. The Congress never gave SCOTUS this power. Marshall merely usurped it. You would, I suspect, agree with me if the issue involved 'broke" the other way. IMO Robert's ability to decide ACA one way and the gay marriage issue the other way shows a devotion to the true function of the judiciary. His dissent as linked shows this. pl

[DC]

Col., the courts exert their powers under the umbrella of judicial review when it is convenient for their majorities to do so; whether we are talking about "liberal" or "conservative" judges. In that regard, it will be interesting to watch Justice Roberts for consistency on that issue. (..I think he's already been inconsistent!)

I am much more concerned by the partisan nature of judicial appointments than I am with the principle of judicial review. The problem you see with the latter is driven by the former. If we had less partisan judges (in all the courts) there would not nearly be the same concern with the meddling judicial review can bring.

[DC]

Sir, "Citizens United" was a ridiculous abuse of judicial authority (in reviewing campaign finance law), and your esteemed Justice Roberts signed off on it. Consistent he is not; although he was self-aware enough in his concurrence to pretend as if his judicial philosophy was not strained by his vote. I remain perturbed by the decision, but was not (and am not) so concerned that I would advocate going back to pre-Marbury (1803) days in order to attempt to cure the problem. It is a political problem very much more than it is a constitutional one.