- - Monday, July 6, 2015

In Obergefell v. Hodges, the Supreme Court invoked its awesome power of judicial review to legalize gay marriage throughout the nation.

In one fell stroke, five Justices short-circuited the democratic process, which was gradually removing barriers to gays, and swept aside the Constitution’s reservation of family law matters to the states.

Even while they may disagree on gay marriage, most Americans believe they must obey Obergefell because the separation of powers gives the Supreme Court the ultimate authority to interpret the Constitution.

Prominent defenders of traditional marriage, however, have gone beyond the usual criticism of a mistaken judicial decision to attack the Supreme Court as an institution.

“I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Mike Huckabee, former governor of Arkansas and GOP presidential candidate. “We must resist and reject judicial tyranny, not retreat.”

Fellow candidate and Republican Senator Ted Cruz has proposed constitutional amendments not only to overturn Obergefell, which other candidates support, but to subject Supreme Court justices to periodic elections.

While these politicians, I believe, have over-reacted, they hit upon an important truth about our Constitution. Contrary to popular belief, Obergefell does not settle the question of gay marriage, because the Supreme Court cannot finally determine any fundamental constitutional dispute.

Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.

Many of our greatest leaders have understood that, in a self-governing republic, the people and not the courts must settle fundamental constitutional issues.

President Abraham Lincoln, for example, believed that Dred Scott only decided a controversy between two parties before the court and could not bind the President and other officials. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” Lincoln wrote in his first Inaugural Address, “the people will have ceased to be their rulers.”

Instead, the people will have “practically resigned their government into the hands of that eminent tribunal.” Lincoln was right: the Civil War, not Dred Scott, resolved the question of slavery.

While the Constitution does not grant the federal courts the final word, it implicitly gives the courts a right to interpret the Constitution.

As Chief Justice John Marshall famously observed in Marbury v. Madison, which established the power of judicial review, “it is emphatically the province and duty of the judicial department to say what the law is.” When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress.

The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law.

But the Constitution does not vest the courts with the exclusive right to interpret its meaning. It says nowhere that the Court’s reading of the Constitution bears superiority over the other branches of government. As Thomas Jefferson wrote to Abigail Adams in 1804 to explain his refusal to enforce the Sedition Act, “[N]othing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them.

Both magistracies are equally independent in the sphere of action assigned to them.” Indeed, the separation of powers means that the legislature and the executive also must interpret the Constitution in the course of performing their own unique functions. Congress should not pass bills that violate its understanding of the Constitution; the President should not sign them.

Rather than give any one branch the final word, the Constitution creates three branches that can compete over its meaning. The separation of powers means that the President, Congress, and the Supreme Court are not only separate, but that they are also independent of each other. According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”

Opponents of gay marriage are summoning this deeper understanding of the separation of powers to reverse Obergefell. But the Constitution itself provides less drastic means than attacking the Court’s independence. Rather than subject Justices to term limits or elections, critics must persuade the American people that the courts have overstepped their proper role by reading their personal preferences into the Constitution. They can change Obergefell’s result by seeking judicial nominees who will restore primary control over family law and marriage to the states. Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not.

John Yoo is the Emanuel S. Heller professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author most recently of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford 2014).

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