Supreme Court legalizes gay marriage in all 50 states in stunning 5-4 decision: a case about the scope and limits of judicial power

HOW REPUBLICANS SHOULD RESPOND TO A SUPREME COURT MARRIAGE RULING

by Robert P. George*


Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York(invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another DredScott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. 

• They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives. 
• They should refuse to treat and regard it as a binding and settled matter. 
• They should challenge it legislatively and give the Supreme Court every opportunity to reverse itself—especially as new justices fill vacancies. 
• And they should work to fill vacancies on federal courts at all levels with jurists who reject judicial usurpation and can be counted on to respect the scope and limits of their own constitutionally specified authority.

I am aware, of course, that people on the liberal side of the political spectrum believe that courts have also usurped legislative authority in conservative causes. That certainly happened in the Lochner case. Many liberals believe it also happened in the Citizens United case. I don't happen to agree, but I understand and respect their position. And I would not fault a liberal Democratic President and Congress for adopting a Lincolnian, anti-judicial supremacist position on the question of the status of the decision. 

Liberals and conservatives alike should reject judicial supremacism. It is an anti-constitutional doctrine masquerading as a necessary constitutional principle. Lincoln was right to regard it as a threat to republican government itself. In fact, if President Obama sincerely believes that Citizens United constitutes a Dred Scott-type usurpation, it is his constitutional duty, in my opinion, to adopt a Lincolnian position on its status. (I note, however, that President Obama does not seem to understand the holding in Citizens United. When he confronted the Supreme Court justices on the case during his State of the Union address a few years ago, he badly misstated it. 

That is what, famously, caused Justice Samuel Alito to shake his head and mouth the word “no.”)

* Robert P. George is the McCormick Professor of Jurisprudence at Princeton University.