Besides doing something about certain lawless decisions made by our black-robed masters, something must also be done about how we came to such a place where they can cast their gaze across the fruited plain and whatever catches their fancy becomes the law of the land, indeed higher than the Constitution.
Roe was bad enough, a joke of a decision made out of whole cloth after Justice Blackmun consulted with phony history and the opinion of his young daughter. But Obergefell is much worse, coming as it does after twenty years of everyday Americans making their views abundantly and overwhelmingly known that they reject faux marriage of the same-sex.
Sitting in their august temple they did what they had wanted to do for some time, and to hell with the democratic process so faithfully adhered to by regular folks. They imposed faux marriage on the whole country with the majority opinion written by Justice Kennedy getting snickers from left, right, and center though not from gay guys who are using some of it in their faux wedding ceremonies.
What got us here is an extravagant and despotic notion called judicial supremacy, the case against which is getting a nice airing out by noted legal scholars. One of them gave an important lecture recently at the Washington DC campus of Hillsdale College, what may eventually be one of the last bastions and protectors of the founding vision.
Matthew Franck has taught constitutional law and runs the Center on Religion and the Constitution at the Witherspoon Institute. He begins his lecture (to be published in full in a future issue of the quarterly National Affairs) with his own view that “Obergefell presents us with judicial aggrandizement on a truly grand scale—and not just because its impact on the institution of marriage is so devastating, nor because of its fallout for the family, for religious liberty, or for the foundations of a free society. What was stunning about the decision was its peculiar brazenness. The sheer boldness of the pretense that the Constitution guarantees a right of same-sex marriage was breathtaking. And the blundering incompetence of Justice Anthony Kennedy’s majority opinion, which almost defies analysis because it answered to no legal norms or categories, was infuriating.”
Franck says in their dissents the four justices in the minority have issued a “call to arms,” a call to resist the decision. He says, “The dissenters directly attack the legitimacy of the majority’s decision, and should be read as inviting their fellow citizens to resist it.”
Beside the mockery in how they write about the decision, he provides an interesting and revealing insight mere laymen would not catch. Franck explains it is a common sign of respect for dissenters not to refer to the name of the Justice who drafted the majority opinion but to refer to “the Court” and “its opinion,” which are alternated with references to “the majority.” In his Obergefell dissent, Chief Justice Roberts refers only seven or eight times to the Justices in the majority as “the Court” and each time in reference to what the Court has “done.” When it comes to the Court’s reasoning, Roberts refers to them as “the majority” and he does this a whopping 66 times. Franck says, “This in itself indicates that for the chief justice, the opinion of “the majority” is not to be dignified with the honorable title ‘opinion of the Court.’ It lacks the constitutional legitimacy such a description indicates.”
In their dissent, Scalia, Thomas and Alito do exactly the same thing.
But, even in their dissents, Franck says Roberts et al are part of the problem for they, too, have bought into judicial supremacy, which is the thing that has brought us to this low point.
In various ways, each of the dissenters say the issue of marriage is now settled, the implication being that, besides trying to change the Court or produce a constitutional amendment, it’s time to strike our democratic tents and head home. The notion that the Court makes final decisions outside its purview is the essence of judicial supremacy that, Franck says, is received wisdom across America and especially in the elite law schools.
Franck defines three kinds of judicial supremacy: the judicial supremacy of imperial power, the judicial supremacy of textual breadth, and the judicial supremacy of authoritative depth.
Judicial supremacy of imperial power holds that the federal judiciary may “decide any important political or social question” whether the Constitution addresses it or not.
Judicial supremacy of textual breadth recognizes the power of the judiciary to interpret “any and all textual provisions or principles of the Constitution as long as bare jurisdictional and ‘standing’ requirements are met…”
Judicial supremacy of authoritative depth holds that the federal judiciary has the power to “impose an obligation of obedience to its interpretations of the Constitution equivalent to the sworn obligation all officeholders have to conform their actions to the Constitution itself.”
Each of these is a problem and each must be resisted.
Franck says such notions are both pervasive but also recent, dating to 1958 in a case called Cooper v. Aaron where “In a fit of righteous indignation…the Court lapsed into a self-righteous declaration of their own right to be obeyed” echoing an off-the-cuff remark made by eventual Chief Justice of the Supreme Court Charles Evans Hughes, “we are under a Constitution, but the Constitution is what judges say it is…”
Franck calls such a thing a rolling constitutional convention where the only participants are the justices of the Supreme Court.
Franck traces the problem to congressional decisions made early in the twentieth century, but says that these problems can be corrected.
It used to be that the Supreme Court was swamped with cases, 400, 500, 600 and more. They had such a huge caseload that some cases had to be held over from year to year. The issue—I won’t say “problem”—was that many litigants had a mandatory right of appeal to the Supreme Court, and the Court had no choice but to take each of them.
Something called “the Judges’ Bill” of 1925, actually written by the Supreme Court, did away with much of that, and their caseload dropped like a stone. What was mandatory became discretionary. The Court was given the right to decline cases. It was determined that the Court would become “the arbiter of legal issues of national significance.” Do you see the problem here? Idle hands can make much mischief—that, and puffed-up egos.
Franck says the 1925 Judges’ Bill and other reforms “have contributed to an inflation of the Court’s importance and of the justices’ self-importance. And the wholly discretionary control of the Court’s docket by its justices has enabled them to impose their will on the country with a minimum of effort, relying on lower courts to do much of their dirty work.”
The sense of the Court’s self-importance can begin to be checked by the congressional reinstitution of some aspects of the Judges’ Bill. Such changes “could do a world of good by doing a world of mischief to the dogma of judicial supremacy.” Specifically, Franck proposes the reinstitution of the “state’s traditional right of appeal with mandatory review by the Supreme Court in cases where a state law was declared contrary to the federal constitution by a federal court”: the Court would not be allowed to summarily dismiss such cases. Every such case would have to be placed on the docket, receive briefs, hear oral arguments, and publish decisions.
At the same time, “any such adverse judgment of lower federal courts, holding a state law unconstitutional, could be automatically stayed in any class of cases Congress chooses to define…”
Franck says under such a regime “none of the federal court judgments against state marriage laws would have gone into effect” until the Supreme Court heard and decided each of the cases separately. What that would mean is the Court could not take one case and decide all of them based on that single one.
Franck says such changes could be enacted today, “and would effectively restore the marriage laws of any state not explicitly governed by the order in Obergefell—which technically affects only the four states of the Sixth Circuit—if public officials in the other states have the courage to act on their oath to the Constitution without confusing it with an oath to follow the latest pronouncements of the Supreme Court.”
Such changes would require creative, heroic and inspired congressional and presidential leadership. Both branches have been content for decades to shuffle off their most controversial issues to the courts. After all, controversial issues get you sent home. Such leadership is hard to imagine in the clown show we so frequently see on Capitol Hill.
But I do know this. I relish the thought of our black-robed masters having to slave away in their august chambers on 200, 300, or 400 cases a year. Taking away their time and forcing them to work on legal issues of less than “national significance” might deservedly knock them down a peg or two: in the process, they might not stay quite so long on the court, and our system of checks and balances might end this despotic system of judicial supremacy.
One of our hopes is the creative thinking of people like Matt Franck. More please.