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The Same-Sex Marriage Decision: What to Make of the Dissenters

06/27/2015 06:37 pm ET | Updated Jun 27, 2016

A central complaint of the four justices who dissented from the Supreme Court's decision in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry, was their repeated assertion that the five justices in the majority were unabashedly -- and illegitimately -- distorting the "true" meaning of the Constitution to suit their own personal values and beliefs.

Chief Justice Roberts, for example, charged that, "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening." The justices in the majority, he declared, have "enacted their own vision of marriage as a matter of constitutional law." This, he insisted, "is an act of will, not legal judgment," because "the right it announces has no basis in the Constitution." "Those who founded our country," he charged:

Would not recognize the majority's conception of the judicial role. They would never have imagined yielding the right to govern themselves on a question of social policy to unaccountable and unelected judges.

Similarly, Justice Scalia sneered that "today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." The Court's decision, he maintained, robbed "the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves." The Court's decision, he fumed, was nothing less than "a naked judicial claim to . . . power; a claim fundamentally at odds with our system of government." Indeed, "a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."

Justices Thomas and Alito chimed in with similar denunciations of the Court's judgment, with Alito charging, for example, that "today's decision usurps the constitutional right of the people."

Assertions of this sort might be warranted if they were made by justices who actually believed in the principle of judicial restraint. There have, in fact, been justices in our history -- Justices Felix Frankfurter and John Marshall Harlan are examples -- who sincerely believed in judicial restraint as a matter of principle. In their view, justices of the Supreme Court should be modest in their interpretation of the Constitution, always giving the benefit of the doubt to the elected branches of government. Under this approach, justices should defer to the judgments of the elected branches -- unless their judgments clearly and unequivocally violated the Constitution.

If justices like Frankfurter and Harlan had written the words quoted above, one would at least have had to respect the sincerity of their commitment to the principle of judicial restraint. But Chief Justice Roberts and Justices Scalia, Thomas and Alito are in no way adherents to this principle. To the contrary, in decision after decision they exercise an often fierce form of judicial activism, a form of activism that is completely incompatible with their self-righteous paeans to judicial restraint in Obergefell.

These four justices, for example, have embraced and defended aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures and contributions; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws permitting affirmative action programs; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws regulating the availability of guns in our society; they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws protecting the voting rights of racial minorities; and they have joined in aggressive and wholly unrestrained interpretations of the Constitution in order to hold unconstitutional laws designed to achieve racial integration in society.

In short, these four justices are not in any principled way committed to the principle judicial restraint. Thus, although there are certainly arguments they can make in opposition to the Court's decision on same-sex marriage, their over-the-top and wildly overstated accusations that Obergefell violates the proper role of the Court and intrudes in some egregious manner on the norms of the democratic process are, at best, disingenuous. It is one thing to disagree with the Court's reasoning. It is quite another thing to charge that, in this decision in particular, the majority betrayed the respect the Court owes to the democratic process. Quite simply, it did not.

Beyond that, though, there is a special hypocrisy in these claims. Under long-established principles of constitutional interpretation, the cases in which it is most appropriate for the Court to take a more activist approach, and to give the least deference to the elected branches, are those in which a law disadvantages a historically oppressed group, for in that situation there is the greatest need for the judiciary to monitor abusive and discriminatory government action.

It is noteworthy that none of the cases in which these four justices have themselves engaged in unabashed judicial activism involved that situation. What they did involve was the enforcement of unambiguously conservative political beliefs. If one wants to make accusations of disingenuousness and judicial manipulation, those decisions present a most interesting opportunity. But in the Court's decision recognizing the right of same-sex couples to marry, the justices in the majority did precisely what the Constitution expects them to do -- protect the rights of those groups and individuals in society who have historically been subjected to oppression and discrimination.