In an instant, the entire history of American jurisprudence would be wiped out, and, with it, the Constitution as a going concern.
In an instant, the entire history of American jurisprudence would be wiped out, and, with it, the Constitution as a going concern.
I n 2015, after the Supreme Court issued its ruling in Obergefell v. Hodges, I took to the pages of this magazine to contend that Kim Davis, the elected county clerk of Rowan County, Ky., needed to stop refusing to issue marriage licenses to gay couples and start following federal law posthaste. In a response to my then-colleague David French — who, at the time, was somewhat sympathetic to Davis’s resistance — I adopted the steadfast position that, “until such time as the Constitution is amended, the Court’s attitude changes, or the republic falls to revolution, Obergefell will remain on an equal legal footing with the other precedents that make up our contemporary legal oeuvre,” and that, in consequence, its holding must be followed by everyone, whether they liked it or not. “The rule of law,” I concluded, “is just that: a rule. There is no such thing as a selective revolution.”
I did not write this because I believed that the Obergefell decision was correct. On the contrary: I thought then, as I think now, that there exists no theory of the Supreme Court’s role within our system that could plausibly render that decision justifiable. There is nothing in the Constitution’s text, tradition, or original public meaning that mandates that the states must recognize gay marriage, and, tellingly, the majority opinion in the case did not attempt to pretend otherwise. There was nothing about the manner in which the responsible justices were appointed that gave them the authority to promulgate the change: Anthony Kennedy, who wrote it, was appointed by Ronald Reagan; Ruth Bader Ginsburg and Justice Breyer were appointed by Bill Clinton, who signed the Defense of Marriage Act; Sonia Sotomayor and Elena Kagan were appointed by Barack Obama, who, at the time, was publicly claiming that he was opposed to same-sex marriage. Nor did the fact that I, personally, was fine with gay marriage have any bearing on the case. We have state legislatures for precisely this sort of question, and, in an act of creative arrogation, the Supreme Court unceremoniously and unjustly removed them from the equation. I was appalled.
Nevertheless, I felt obliged to speak up in defense of the institution because, fundamentally, I concur with Abraham Lincoln that “reverence for the laws” ought to be “the political religion of the nation” and that “the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions,” ought to “sacrifice unceasingly upon its altars.” As with Roe v. Wade, and Wickard v. Filburn, and Kelo v. City of New London, I did not think that Obergefell was warranted. But there is a difference between contending that a given ruling is wrong — or even, in a cosmic sense, that a given ruling is illegitimate — and moving to ignore that ruling or to find ways around it. As our Founders understood, the Constitution does not come à la carte. If the government becomes destructive, it can, indeed, be abolished. But that comes at a cost. Afterward, as Thomas Paine had it, the world must be started over.
I mention all this because I have been wondering over the last week or so what the outraged Democrats who are currently vowing to pack the Supreme Court think would happen next if they were to get their way? Do they imagine, perhaps, that, having wrapped themselves in the finery of the institution’s prior reputation, they will be able to proceed as if nothing had changed? If they do, they are fools.
The key trouble with Kim Davis’s position was that, if it had been indulged, it would have opened the door to all others. Had we permitted Davis to opt out of Obergefell, then we would have had to permit the cops to opt out of Miranda and California to opt out of Heller and the Trump administration to opt out of Brandenburg v. Ohio. This, clearly, would not do. We can either have a Supreme Court whose decisions are final, or we can have a bipartite system in which the executive and the legislature are the only games in town. There is no middle ground, even when the Court is objectively wrong in its determinations.
If, in an attempt to rig its decisions to their politics, the Democrats were to add four justices to the Court, the Court would instantly cease to be, for, here, “packing” is a euphemism for “destroying.” In such a circumstance, there is simply no way that I would take the position that I took with Kim Davis after Obergefell, and there is little chance that anyone else out of the Democratic Party would, either. In fact, I would be guaranteed to go the other way. Post-packing, nothing that the Court said going forward would matter in the slightest, and, by extension, any attempts to enforce its prior rulings would be rendered impotent, too. In an instant, the entire history of American jurisprudence would be wiped out, and, with it, the Constitution as a going concern. Judging by their rhetoric, the Democrats seem earnestly to believe that, by taking this step, they would gain control of the Supreme Court in the same manner as they have gained control of Harvard or the American Medical Association or the Oscars. They would not. They would gain the right to preside at its funeral — and, after that, the void.