As of this writing, the lead stories at both the Washington Post and New York Times are the same — in tiny Rowan County, Kentucky, Kim Davis, the elected county clerk, is defying the Supreme Court of the United States. Citing “God’s authority,” she is refusing to issue any marriage licenses out of her office, referring couples to neighboring counties. Her reason is simple: Ever since the Supreme Court’s ruling in Obergefell v. Hodges, she’ll be required to issue licenses to same-sex couples, and signing her name on the marriage certificate would be a “searing act of validation” that would “forever echo in her conscience.”
Make no mistake, this is a revolutionary act. She has been rebuffed by the courts at every turn. She has exhausted her legal options. And the Supreme Court unmistakably has jurisdiction over her case. Her actions are now lawless, and she’s facing a motion for contempt of court, a potential criminal case for official misconduct, impeachment, and — of course — possible rejection at the ballot box. Revolution has its consequences, and Davis will endure those consequences soon enough.
It’s not the first time the Supreme Court has stepped into the most consequential of legal questions, removed them from the Democratic process, and did so by essentially making it all up. The Court’s horrific Dred Scott opinion helped spark the Civil War. Roe v. Wade legalized mass murder. And the instant after each judicial coup, its defenders solemnly invoke the “rule of law” to force the masses to comply. Yet the rule of law requires both lawful enactment and lawful enforcement.
The instant after each judicial coup, its defenders solemnly invoke the ‘rule of law’ to force the masses to comply. Yet the rule of law requires both lawful enactment and lawful enforcement.
Thus, what we’re watching unfold in Kentucky isn’t so much the “rule of law” as the raw exercise of power. Judicial revolutionaries simply wield more power than Kentucky county clerks — partly because the judges enjoy the popular support of millions of Americans (including public officials), partly because their lifetime tenure almost entirely insulates them from accountability, and partly because even the most vigorous dissenters understand that answering one revolution with another will upend the entire system, a price they’re not willing to pay. At least not yet.
In fact, the rule of law has increasingly become a mere talking point, a weapon wielded by the Courts and the Obama administration when it likes a given legal outcome, but disregarded when pesky things like “democracy” and “procedure” interfere with the demands of social justice. For the Obama administration, even proper regulatory rulemaking can be too burdensome. Rule by executive order or even departmental letter replaces constitutional process, with the social-justice Left cheering every step of the way.
The bottom line is that the Supreme Court and its defenders are more powerful than Kim Davis and her defenders. The fact that the eyes of the national media are on one, solitary county clerk — rather than hundreds, or even thousands — demonstrates that reality starkly enough.Successful revolutionaries — and the Supreme Court certainly is successful — are never too far ahead of the culture. In 1973, the Court legalized the intentional killing – often by dismemberment — of innocent children. There was no social upheaval. No governor defied a ruling that has enabled more than 57 million child deaths. More than 40 years later, even as the pro-life movement continues to grow, it’s proven a so-far impossible task merely to defund the nation’s largest abortion provider.
I have deep respect for the rule of law, for our Constitution, and for our federalist democratic traditions. And that’s exactly why I have no respect for Roe, for Obergefell, or for any assertion that enforcing those revolutionary acts represents American constitutional government in action. Kim Davis committed a lawless act. But so did Justice Kennedy. His superior power and influence does not change that salient fact. The American people are indeed “ruled,” but increasingly it is by men, not law.
— David French is an attorney and a staff writer at National Review.