- - Sunday, June 28, 2015


Five justices of the U.S. Supreme Court are clearly afflicted with the royalty disease. They imagine themselves to be the rightful heirs of Louis XIV of France, who famously declared himself to be the state — “l’etat c’est moi” — with no questions asked. The justices, like the king, think they can do anything they want.

In two important cases last week, the court dispensed with the law and the next day dispensed with the Constitution, making no pretense or apology for asserting the kind of authority Louis XIV had in mind for himself as executive, legislature and judiciary, making laws and repealing others on whim. Like the king, they can do what they please.

The court’s long-anticipated decision in the same-sex marriage case, finding a right to federal marriage in the Constitution that had eluded everyone else for 226 years, was the more emotional of the two landmark decisions. The other, rewriting a law, not on constitutional grounds but to make it fit the court’s idea of what Congress meant to say or ought to have said, could be the most far-reaching. The court had never before asserted its right to read minds or reward lawyers for sloppy work.

The language of the same-sex marriage decision embarrassed its author for the purple language usually found in a bodice-ripper by a romance novelist, not the clear and dignified language of legal analysis expected of a judge worthy of his seat. Justice Anthony Kennedy, once regarded as “a swing vote,” swinging both ways on important issues, reveals himself to be a Blackstone of judicial fluff, blown about by every wind that blows. He cited as precedents his own previous decisions.

“Marriage,” Mr. Justice Kennedy wrote, “responds to the universal fear that a lonely person might call out to find no one there.” The case before him, he wrote, “embodies a love that may endure even past death.” The plaintiffs and the masses for whom they presume to speak, hope “not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Mr. Kennedy’s ode to love, described by one commentator as “nine parts romantic poetry and one part legal analysis (if that),” was enough to make Justice Antonin Scalia, who wrote one of several dissents, gag and all but splutter. Noting the first sentence in the majority opinion — “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, with a lawful realm, to define and express their identity” — Justice Scalia said if he were ever to join an opinion with a sentence like that he would “hide my head in a bag. This was the language of the mysterical aphorisms of the fortune cookie.”

Mr. Kennedy, who in his less giddy moments seems to understand what the consequences of his flights of romantic fancy might be in future cases before a later Supreme Court, tried to sound reassurance. Nothing in the court’s ruling could force religious faiths to condone same-sex marriage or perform weddings to which they object. That’s what he says now.

Justice Scalia took pains to say he was not expressing an opinion on the moral efficacy of same-sex marriage, but decried “this court’s threat to American democracy.” He called the decision a “judicial putsch,” using the German word for a sudden and decisive change of government, illegally or by force. It was that kind of day at the Supreme Court). The anger and tumult have hardly begun.

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