Law & the Courts

After Obergefell, the Senate Is the Last Line of Defense against Judicial Tyranny

Justice Anthony Kennedy (Chip Somodevilla/Getty)

In the days since Justice Scalia’s death, both the Right and the Left have trotted out precedents to support their positions on whether the Senate should confirm his replacement before November’s presidential election. Pundits have debated whether Justice Kennedy’s nomination supports the liberal argument because he was confirmed in an election year, or whether it supports the conservative position because he was actually nominated in the previous year. The discussion has included nominations going back over a century, names that most Americans had never heard prior to Saturday night.

But historical precedent should not determine the Senate’s actions in this instance. The legal landscape changed in June 2015, when Justice Kennedy wrote the Obergefell decision, overturned Washington v. Glucksberg, and called on courts to substitute their own “reasoned judgment” for the judgments embodied in the Constitution. In light of that opinion, whatever comity and cooperation may have previously been appropriate regarding Supreme Court nominations no longer applies. 

Once the Court declared its intention to throw off all restrictions on its power, the Senate became the Constitution’s last line of defense against activist nominees. It is no longer sufficient for the upper chamber to determine that a nominee has the proper qualifications and temperament to serve as a Justice. Senators must approve a nominee only if they are convinced that the nominee will reject Obergefell’s call for judges to adjudicate fundamental rights based on their personal intuitions and predilections. Nominees who fail to meet that threshold should not be entitled to an up or down vote, let alone a confirmation.

The view of judicial power laid out in Obergefell would transform the nature of the judiciary and the American Republic. Justice Kennedy wrote that “the identification and protection of fundamental rights is an enduring part of the judicial duty” and that judges should “exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”

#share#According to Obergefell, judges should not be constrained by “history and tradition,” because “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions.” Judges have the power to protect individuals’ “liberty” as they “learn its meaning.” In other words, modern-day judges may have “new insights” that require the creation of constitutional rights that were alien to the framers of the Constitution. The decision dismissed the argument that the issue of gay marriage ought to be determined through “further legislation, litigation, and debate,” or that there had been “insufficient democratic discourse,” by saying that there had been enough debate for the justices to make up their minds, and the justices’ minds are the only minds that matter.

Kennedy did acknowledge that his opinion conflicted with the precedent set by a previous case, Washington v. Glucksberg, which held that courts could not recognize new constitutional rights unless there was clear evidence that those rights were “deeply rooted in this nation’s history and tradition.” But the Obergefell decision dismissed even this modest restraint as an artifact of the specific facts of Glucksberg that should not deter courts from exercising their will regarding gay marriage or “other fundamental rights.”

#related#This little-reported facet of the decision has the potential to radically alter American politics and jurisprudence, so debates over judicial nominations take on an entirely new significance in a post-Obergefell world. The case — no matter how wrongly decided — is a Supreme Court precedent, and its impact cannot be ignored. Pandora’s Box has been opened, and we have to deal with the consequences.

Conservatives have long expressed antipathy toward litmus tests for judicial nominees. But there is one litmus test that is appropriate: Republican senators should block any nominee unless they are convinced that the nominee will reject Justice Kennedy’s invitation to use “reasoned judgment” — rather than neutral constitutional principles — to arrive at their decisions regarding constitutional rights. It is incumbent on nominees to persuade the Senate that they reject that standard. If the Senate is not entirely convinced that a nominee sees himself as a judge rather than a philosopher king, the nominee isn’t owed any further consideration. The Supreme Court is a judicial body, not an oligarchic super legislature, and anyone who thinks otherwise is not fit to serve on the bench.

— Howard Slugh in an attorney practicing in Washington, D.C.

Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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