Sunday, July 5, 2015


Finally, the medical and dental priorities have been satisfied and we are about to aim our Acura North on I 75, step on the gas and leave 90 degree heat and humidity behind.

Polly, God bless her, has done a yeoman job of packing. I usually make the trip to Michigan with a simple overnight bag filled with sox and underwear. She fastidiously assembles her wardrobe to be prepared for all kinds of weather and every level of social propriety.

There are still a few odds and ends to be attended to, but right now I have a couple of minutes to fill, and I have decided to make one more pass at commenting on the gay marriage cases.

My first efforts didn’t pass my domestic editorial board.

I hope you’ll understand. As a lawyer, a judge, a legal educator and sometime student of the United States Constitution, I read the majority opinion in the Obergefell gay marriage case with disappointment bordering on disgust.

The Court didn’t even pretend to be rendering an opinion explaining its decision in the cases on its docket.  Quite the contrary, the Court openly told us that it was creating a new right, which it declared to be binding on all 308 million people in the United States.

The Congress of the United States needs to garner a two thirds vote in both Houses just to propose a constitutional amendment. The Court has claimed the power to actually adopt an amendment by a 5 to 4 vote.

Candidly, the decision made me mad. Of course, it didn’t really surprise me. The Court only hears cases it wants to hear. When they took the gay marriage cases, it was pretty clear that they wanted to decide as they did.

In my calmer moments, I sigh and say, ‘Appellate Courts make lots of mistakes. Look at the Dred Scott case, where they said black people couldn’t be citizens. Look at the Plessy case where they said the States could have segregation laws. Those decisions didn’t stand. Eventually, they were overruled.

Appellate courts are always searching for the truth, always correcting the mistakes of the past. Perhaps some day, some future Supreme Court will overrule Roe v Wade and the Obergefell case. Some day the Supreme Court may realize that it is only a court and not a super legislature and get out of the business of running prisons and school boards and imposing new taxes. Some day. But probably not soon.

The difficulty with a run away Supreme Court is that every decision makes somebody happy. And if enough people, enough of the ‘right’ people, are happy with a decision, it is celebrated as a landmark improvement in the lives and liberties of the American people.

The really sad part is that Supreme Court Justices live in a different place. Not only do they have little or no contact with commoners, their social and professional lives are cocooned by clerks, lawyers, academics and sycophants whose every word and gesture reinforces the notion that they are the most powerful leaders of the civilized world.

It has been well said that power corrupts and absolute power corrupts absolutely.

Unfortunately, in the public square, it is difficult to depersonalize issues of law and governance. The folks in line at the supermarket who are appalled by the Court’s decision have no interest in fixing the Supreme Court so that it will be more obedient to the Constitution. They might gladly hang Anthony Kennedy in effigy, or impeach Justices Kagen and  Ginsburg who had performed gay marriages before they heard the case, but if you talk about changing the way we choose Supreme Court Justices, they glaze over.

Perhaps Thomas Jefferson was right. Maybe the only way the people can deal with a run away Supreme Court is by nullification and interposition. Call it protest, civil disobedience, whatever. Maybe some caterers will have to go to jail for refusing to service gay weddings. Maybe some county clerks will get fired for refusing to issue licenses, but just maybe that’s the only way the people can take back the right to make their own laws in a republican form of government.

Or, we could all just shrug our shoulders and sigh, “You can’t fight City Hall. Why bother to try?”

1 comment:

  1. Once again Judge, you are spot on. My liberal friends celebrate the Court's decision without for one moment recognizing the freedom they lost when the Court elected to ignore the Constitution and legislate from the bench. They are clueless as to the dangerous precedent set by this Court's return to the reckless concept of substantive due process. Kennedy and Blackmun and their majorities, lawless judges who somehow made it to the highest Court in the land. We need an Article V convention to correct these errors.