Wednesday, September 30, 2015


The layman’s notion of judicial review is that the Supreme Court can “invalidate” a state law which it determines to be unconstitutional. Admittedly, this is the way newspapers report so-called ‘landmark’ decisions. 
Judicial review is not limited to the United States Supreme Court. Every court, from the lowest county traffic judge, has the same power to determine whether a state law does or does not comply with the state or federal constitution. If a court decides that a statute is unconstitutional, it is the duty of the judge to decide the case as though the statute in question does not exist.
That decision establishes the law of the case, and unless appealed, it determines finally and irrevocably the rights of the parties to the litigation. 
The decision, however, does not determine the rights of any other party. The Fifth Amendment to the United States Constitution affirms that no person shall be deprived of life, liberty or property without due process of law. Due process requires that a person be given a fair hearing before he or she can be jailed, fined or ordered to do anything by a judge. 
In Brown v Board of Education, the Supreme Court wisely overruled the case of Plessy v Ferguson and opined that the United States Constitution is color blind, ruling that the twenty black children of thirteen Topeka, Kansas parents were entitled to attend their local white public school. 
The order issued in that case affected those 20 children and only those 20 children. It was, however, clear to everyone that the Supreme Court was of the opinion that public school segregation laws were unconstitutional and that any state which would continue enforcing such laws would face the obvious fact that their actions would be challenged in court, and that the lower courts would almost certainly defer to the opinion of the United States Supreme Court, unless there was some logical and significant difference in the facts.
Applying the Brown rule in a nation of over 200 million people was not a simple task. Not only in the previously segregated Southern States, but in densely populated Northern cities, the natural tendencies of people to prefer neighborhoods having distinct racial or ethnic character fostered de facto segregation in many neighborhood public schools.
As a result, a number of new cases were filed, leading to a decision commonly referred to as Brown II. In it, the United States Supreme Court ordered a number of State Attorney Generals to submit, within a stated period of time, their plans for the desegregation of public schools “with all deliberate speed.”
Brown II resulted in a complete reversal of Brown I’s salutary finding that the Constitution is color blind. Quite the opposite, Brown II required that students, both black and white, be assigned to schools based on the color of their skin, in an effort to achieve statistical integration.
The result was a period of more than a quarter century of judicial activism in which federal judges ordered children transported by bus long distances from their homes, ordered local taxes to be assessed, ordered school bonds to be issued and ordered new school buildings constructed.
Now, more than 60 years after Brown, more than 70% of black school children still attend schools which are more than 50% black; more than 30% of black children attend schools that are 90% black and about 15% of black children attend schools that are 99% black.
Those statistics are not the result of any organized effort at nullification. They are simply the consequence of a free people in a free country making their own decisions for their own reasons.
Abraham Lincoln made it clear that the Supreme Court makes the law of the case and not the law of the land. That is not learned only in law school; it should be taught in high school civics. Article III of our Constitution vests judicial power, and only judicial power, in the nation’s courts. Courts are empowered to dispense justice on a case by case basis. They are neither established nor equipped to make laws, amend laws, repeal laws or order legislatures to change laws.
Whether a perceived landmark case like Obergefell v Hodges will result in a significant change in American culture will depend on the extent to which the people of the nation accept and act upon the Court’s opinion. If state marriage laws are changed, a cultural tsunami could well occur. If they are not changed, The Supreme Court will pursue a fool’s mission if it attempts to mandate nationwide compliance with Obergefell one case at a time.  


  1. Judge, can Kentucky marriage licenses issued to gay couples be considered void because they violate revised statutes section 402.005 of Kentucky's constitution?

  2. Obviously, they are void under Kentucky law unless and until the Kentucky law is changed. As long as the Kentucky law remains on the books, it represents a conflict with what a majority of the United States Supreme Court believes the Constitution demands. The question then becomes: How will the State and Federal courts decide cases in which the validity of a same sex Kentucky marriage license is challenged?
    You can be fairly sure that virtually every judge will follow the Obergefell decision of the Supreme Court, at least until the personnel of that august body changes. If the Kentucky Legislature requires that a disclaimer be printed on every such license required by court order, that requirement should be held as constitutional.