Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
Constitutional scholars are still parsing the decisions, and it may take the passage of time to gain a full perspective of their significance.
In the meantime, why are these decisions so disturbing to conservatives (myself included)? The Supreme Court has been engaged in judicial activism for decades; the Warren Court practically specialized in it. The outcome of Obergefell was widely anticipated, and was foreshadowed by Justice Kennedy’s opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and the farcical “mystery passage” credited to him in Planned Parenthood v. Casey (1992). Kennedy was hardly a reliable conservative vote coming into Obergefell. Chief Justice John Roberts showed his true colors (at least regarding ObamaCare) three years ago with his tortured decision in National Federation of Independent Business v. Sebelius (2012). The lawless “reasoning” of Obergefell was no worse than that of Roe v. Wade (1973), which is, unfortunately, still the law of the land.
Possibly the pall cast by these decisions owes to their cumulative effect, or frustration over the failure of Republican presidents to do a better job of appointing principled conservative judges to the Court (but recall that Earl Warren, William Brennan, Harry Blackmun, and David Souter were all appointed by Republican presidents also), or a sense of helplessness that a Republican-controlled Congress seems so ineffectual in the face of a liberal bloc of unelected judges. Or all of the above; it is easy to be discouraged when hard fought electoral victories yield scant policy gains.
To me, the most depressing aspect of the recent activist decisions is that the Court has clearly begun to think and act as a political branch of government—not even pretending to follow the law. In critical cases, the liberal Justices (Ginsberg, Breyer, Kagan, and Sotomayor) vote in rigid lockstep, and the “swing” votes (Kennedy and now—at least on occasion—Roberts) increasingly seem to be under the influence of the Greenhouse Effect (named after the former New York Times Supreme Court correspondent Linda Greenhouse), playing fawningly to the audience of liberal journalists and academics. The Court has its finger in the air, and the direction of the cultural wind is changing.
Call it the Zeitgeist, but Obergefell was met by a White House bathed in rainbow lighting and ubiquitous rainbow profile pictures on Facebook. Even though only 3% of the population is gay, a much larger percentage of the public (especially among millennials) and an overwhelming majority of what Irving Kristol termed the “New Class” that dominates the media, Hollywood, higher education, big business, and the legal profession, exhibits the secular, anti-bourgeois mentality that views traditional marriage (among other once-dominant values) as unimportant, old-fashioned, and even outmoded. In other words, the Court has firmly taken sides in the culture war, because (a) it realizes it can; and (b) it disdains the other side, the social order that Joseph Schumpeter referred to in Capitalism, Socialism and Democracy (1942) as “the bourgeois fortress,” consisting of traditional morality, respect for the family unit, and devotion to the rule of law.
If I am correct in this bleak assessment, activist judges see themselves as the Platonic Guardians of the New Class, and, even worse, the New Class embraces them as such. I will develop this thought at greater length in subsequent posts.