Now that the dust has settled and the hand-wringing over the U.S. Supreme Court’s decision in Obergefell v. Hodges seems mostly to have subsided, it’s worth reflecting on what the case means. In the last month, we’ve heard from pundits and politicians of every stripe, who rushed to explain the decision’s import. For some, the recognition of same-sex marriage in all fifty states ushered in a new era of equality, while others warned that it heralded the end of the Republic.
Of course, the marriage ruling was certainly historic—no one would contest that—but it wasn’t extraordinary. You wouldn’t have known it to listen to the talking heads on TV, but the Supreme Court didn’t do anything unusual when it ruled that same-sex marriage bans violate the Constitution. To understand why, we waded through the hype and the history to get to the heart of the Supreme Court’s role in our constitutional democracy.
Did the Supreme Court ignore the will of the people?
The stakes are too high and the issue too important to simply cede the will of the people to unaccountable justices. –Rick Santorum on Obergefell v. Hodges
No matter how much the Supreme Court seeks to sugarcoat its bitter pill of tyranny, the people of the South will not swallow it. –Marvin Griffin, former governor of Georgia, on Brown v. Board of Education
The Supreme Court’s job is to interpret the Constitution, and the Constitution is the supreme law of the land. At its heart, the Constitution is a series of protections that keep government from infringing core freedoms. Some freedoms every American can recite—like freedom of speech, assembly, and religion. Others like the right to be treated equally by government actors and the right not to have liberty abridged without due process may be less well known. But if the majority passes a law that violates any of those freedoms, it’s the Court’s job to strike it down.
So yes, sometimes the Supreme Court ignores the will of the majority in order to protect the constitutional rights of individuals.
This is a feature, not a bug.
But how can the Supreme Court ignore centuries of tradition?
I am disappointed the Supreme Court today chose to change the centuries-old definition of marriage as between one man and one woman. –Rick Perry, on Obergefell v. Hodges
To many people this decision is contrary to a way of life and violates the way in which they have thought since 1619. –Cavalier Daily (University of Virginia newspaper) on Brown v. Board of Education
Actually, the Supreme Court does this all the time, once we all realize that what we’ve been doing for centuries violates those rights the Supreme Court is entrusted to protect. Societies evolve, the authors of the Constitution knew that, and they composed a document that would allow for that development. For example, the Constitution forbids “cruel and unusual punishment”. Once upon a time that did not include pillorying, flogging, branding, and chopping people’s ears off.
Okay, fine…but where can I find marriage equality in the Constitution?
[The Court] fabricated a new constitutional right in 2015. –Texas Attorney General Ken Paxton, on Obergefell v. Hodges
The justices produced a non-text-based and generalized right. –Catholic Education Resource Center, on Griswold v. Connecticut (recognizing a constitutional right to decide whether and when to have a child and striking down a ban on contraception)
You can’t. But what you will find in the Constitution are the rights to equal protection and due process, which Justice Kennedy cited in his opinion on marriage equality. The Supreme Court didn’t pluck a brand new right out of thin air that allows same-sex couples to marry, but instead applied the rights already guaranteed by the Constitution to marriage bans that were passed in just the last two decades.
I’m fed up with these activist judges. How do you know they didn’t get it wrong?
This is judicial activism at its worst. –Ted Cruz, on Obergefell v. Hodges
[This case] encourages Americans to bypass the ballot and seek to press their political agenda in the courts. –J. Jarvie Wilkinson III, on D.C. v. Heller
“Judicial activism” is a term people generally use when they don’t agree with a Supreme Court decision, while “judicial restraint” is the one they use when they do.
But the fact of the matter is that whether they’re exercising “activism” or “restraint”, the Supreme Court does get it wrong sometimes. They got it wrong in Korematsu v. U.S. when they decided that rounding up Japanese Americans for being Japanese was perfectly constitutional. They got it wrong in Minor v. Happersett when they denied women the right to vote. And they got it unanimously wrong in Schenck v. U.S. when they decided that the peaceful distribution of anti-war leaflets was a crime. (A bit of trivia: Schenck brought us the now-famous refrain of “shouting ‘fire’ in a crowded theater”, which refers to that peaceful distribution of anti-war leaflets and not, as one might think, to shouting “fire” in a crowded theater.)
Aha! I knew it! Since they sometimes get it wrong, can’t we just ignore them?
One thing I am angry about is this notion of judicial supremacy, where if the court makes a decision, I hear governors and even some aspirants to the presidency say, ‘Well, that’s settled, it’s the law of the land.’ No, it’s not the law of the land. –Mike Huckabee, on Obergefell v. Hodges
I do not recognize, I have never recognized, I cannot recognize that what the Supreme Court says is the law of the land. –Virginia Gov. Lindsay Almond on Brown v. Board of Education
No, you can’t. The Constitution is uncontestably the supreme law of the land, and since the Supreme Court is tasked with interpreting what the Constitution says, Supreme Court decisions are in fact the law of the land.
That doesn’t mean that debate ceases or that the political process is at an end. Sometimes, as debate continues, the Court changes its mind. This can take some time. In Plessy v. Ferguson, for example, the Court decided in 1896 that “separate but equal” racial segregation was constitutional, and only changed its mind sixty years later when it handed down Brown v. Board of Education.
In other cases, we amend the Constitution itself. This is intentionally very hard to do, and requires that just about everybody agree to it. This is how women gained the right to vote in the U.S., incidentally. The Court decided in Minor v. Happersett that it was constitutional to deny women the right to vote, which was the law of the land until the 19th Amendment was passed in 1920.
Balderdash! Can’t we just get rid of the Supreme Court and save some money?
If we want to save some money, lets just get rid of the court! –Bobby Jindal, on Obergefell v. Hodges.
First of all, the Supreme Court doesn’t cost that much money, and this year they even volunteered to cut their own budget, which isn’t something you see all that often in Washington. (Charmingly, last year’s budget included the replacement of an air conditioning system that was over seventy five years old, and the only person who knew how to repair it was a retiree in West Virginia.)
Secondly, getting rid of the Supreme Court would mean shredding the Constitution into itty bitty bits.
Third…do you really want to get rid of the Supreme Court? Really? Are you sure there’s nothing you might need the Court’s protection for? What if a judge decides to throw you in jail for filming on a public sidewalk? What if someone sues you over your Yelp review? What if the cops decide to arrest you just for knowing what your rights are? What if the town you live in decides to ban all guns?
The system isn’t perfect, certainly. But sometimes all that’s standing between you and oppression are those “five unelected judges.”