Time to Knock the Supremes Down a Peg or Three

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.”

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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.