On the home page today, Howard Slugh has an excellent essay explaining how Justice Kennedy’s opinion in Obergefell v. Hodges eviscerates the limits that the Court imposed in 1997 in Washington v. Glucksberg (no constitutional right to assisted suicide) on inventing so-called substantive due process rights. How fitting that the oxymoron of “substantive due process” would be deployed to impose the oxymoron of “same-sex marriage.”

As Slugh explains, “the only remaining limit on new judge-made rights is a judge’s imagination.” And one thing that can surely be said about Kennedy and the liberal justices is that, while their grasp of reality may be weak, they have very inventive imaginations. Slugh continues:

It is impossible to know what sort of unenumerated rights newly freed judges may impose. Present-day European constitutions contain rights to adequate housing, a healthy environment, the enjoyment of nature and culture, a fair wage, limited working hours, and “cultural and social self-fulfillment.” Now that Justice Kennedy has opened the floodgates, there is no concrete legal reason to rule out the possibility that judges may find these rights hidden in our Constitution as well.
Liberals have spent decades trying to pass an Equal Rights Amendment, but now a judge can hand them victory on a silver platter. [EW: I think that’s largely been done already.] Allowing D.C. to have voting representatives in Congress is a liberal dream, and now a judge can make it happen with the stroke of a pen. Felons nationwide can have their voting rights restored tomorrow. The possibilities are endless, and questions that may have formerly been decided through the democratic process are now more likely to be decided by unelected judges.