Democrats’ Court-Packing Threat Could Destroy SCOTUS

In 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.

About the Author

Charles C. W. Cooke

Charles C. W. Cooke is a senior editor at National Review and the host of The Charles C. W. Cooke Podcast.

Featured Tags

Constitutional Government

In 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.