Judicial Usurpation: Then and Now
Whether the issue is abortion or marriage, judges shouldn’t be policymakers.

Justice William Brennan in 1972 (Library of Congress)



Even putting aside the constitutional questions here, the Court’s record as a policymaker is dismal. If forced to be charitable, one might say that the rulings in these cases were prompted by a desire to reduce the incidence of unplanned pregnancy and abortion. But what has happened? In the early 1960s, only 6 percent of American children were born outside marriage. Today, the figure is above 40 percent, and social-science research overwhelmingly shows the disadvantages that such children face growing up and thereafter. Other research shows the drain on public resources arising from the normalization of out-of-wedlock child-bearing. Finally, and contrary to the prediction in Roe and its companion case Doe v. Bolton, abortion has not been an infrequent occurrence, but a widely used form of birth control — and this despite the much greater availability of contraceptives in the last 40 years.

As an exercise in constitutional interpretation, Eisenstadt is laughable, but hardly inconsequential. The suit was a “test case” initiated by William Baird, that irrepressible birth-control activist of yesteryear, who openly courted arrest by distributing contraceptives after he gave a lecture at Boston University. Initially, the Supreme Court seemed to recognize Baird’s shenanigans for what they were, because it declined to review his conviction. A year later, the Court strangely agreed to hear the case, providing further evidence that a majority of justices saw an opportunity to make abortion policy for the whole nation.

What can be learned from all of this? At least two lessons.

First, notwithstanding criticisms of the constitutional challenges to the Affordable Care Act of 2010, a case such as Eisenstadt illuminates the true meaning of judicial usurpation. The challenge to the comprehensive health-care legislation pivoted on a simple question: As the legislature of a government of enumerated and therefore limited powers, does Congress have the authority to impose a mandate on citizens to purchase a product or service? Arguments can be made on both sides, and a strong case can be made that the Constitution delegates no power to the national government that would require citizens to buy health insurance. By contrast, Eisenstadt represents a radical departure from the long tradition of judicial deference to state legislatures when the latter exercise their police powers.

Second, the Court should recognize the risks of promulgating a constitutional right to “same-sex marriage.” Those risks relate to the Court’s credibility as an institution and the potential problems — social, political, and legal — likely to arise if marriage is judicially redefined for the entire country.

“Marriage equality” is becoming a popular slogan, but no court, especially not the Supreme Court, should be swayed by the slogans of the day. Nor should anyone suppose that redefining marriage is warranted or required by the 14th Amendment’s Equal Protection Clause. The Supreme Court erred badly in relying on this clause in Eisenstadt, and removing the marriage issue from the legislative domain and the democratic process would mean again siding with liberals in a political struggle. Furthermore, invoking the Equal Protection Clause would leave the Court no principled basis for upholding laws restricting marriage to two persons, as opposed to three or more in a “polyamorous” sexual partnership.

In recent years, opponents of the redefinition of marriage have faced a new locus of judicial usurpation: state supreme courts. Too many judges on these courts have taken their cues from cases such as Eisenstadt, when they should have left marriage policy to legislators in their states or to the people themselves acting by referendum or initiative.

Critics might say that our views would have required the Supreme Court to leave state bans on interracial marriage intact. That is false. Prohibitions on interracial marriage in the South were integral to a system of racial subordination — a system that the 14th Amendment in general and the Equal Protection Clause in particular were meant to undo. Moreover, southern anti-miscegenation laws cannot be understood apart from the forcible disenfranchisement of black voters under segregation. That disenfranchisement violated the Fifteenth Amendment, and it thereby implicated the Equal Protection Clause of the 14th Amendment regarding certain policies, including laws on interracial marriage. But there was no policy of disenfranchisement in Massachusetts in the decades before Eisenstadt, and there are no restrictions in the United States today on voters seeking to persuade their state legislators to redefine marriage as something other than a conjugal (i.e., husband-wife) union.

For this reason and others, the Court should, absent a constitutional amendment defining marriage one way or the other, respect the constitutional allocation of powers and principles of American federalism and allow each state legislature to make policy in this area. The Court should be equally deferential to state referenda (such as Proposition 8 in California) and the 30 amendments to state constitutions that define marriage as the union of one man and one woman. These initiatives are constitutionally legitimate and reasonable policy measures, launched largely because of the provocations of state-supreme-court judges who have redefined marriage for the people of several states. Whatever the liberal pundits have been saying since Election Day, the redefinition of marriage throughout the United States is not “inevitable.” And if the Supreme Court were to invalidate Proposition 8, it would be an act of judicial usurpation even more egregious than its abuse of power in Eisenstadt.

— Robert P. George is McCormick Professor of Jurisprudence at Princeton University and a Visiting Professor at Harvard Law School in 2012–13. David L. Tubbs is Associate Professor of Politics at King’s College in New York City.