The Corner

Law & the Courts

Kim Davis and Judicial Supremacy

The homepage is featuring an article I wrote on judicial supremacy and the presidential race for the latest issue of NR — an article I wrote right before the clerk’s office in Rowan County, Kentucky, became a national story. The question of how authoritative a Supreme Court decision should be taken to be has of course come up in the debate over Kim Davis too. She appears to see her decision as a choice between her religiously informed conscience on the one side and a lawless edict to be given no weight on the other. Which is to say, as an easy choice.

As I write in the article, the political culture has to give even mistaken Supreme Court decisions a fair amount of deference for our government to work: That’s the practical point that defenders of judicial supremacy make. But that deference cannot be absolute, for the reasons Abraham Lincoln explained. The Lincoln administration disregarded the Supreme Court’s ruling that black people could not be citizens and issued patents and passports in accord with its own, rationally superior view. But this precedent is not as helpful to Davis as Mike Huckabee has suggested: I’m pretty sure the Lincoln administration didn’t leave these decisions to individual clerks.

I think the Kim Davis case is better viewed in terms of religious accommodations than of judicial supremacy. If the state legislature had enacted same-sex marriage, presumably she’d still be going with her conscience. (Maybe that’s an unjustified assumption, but that’s the strong impression I get.) If, on the other hand, the legislature had coupled same-sex marriage with North Carolina-style protections for clerks who object to it (so that marriage licenses for same-sex couples wouldn’t have to bear the names of those clerks), she would be able to follow her conscience without any question of the limits of the Supreme Court’s power even coming up. Her critics say that if she cannot do her job in good conscience, then she should resign. Whether or not they’re right, sensible legislation would let that question be sidestepped.

But excessive judicial power is relevant to the story. As Ryan Anderson pointed out in the New York Times the other day, legislation recognizing same-sex marriage might have included religious accommodations. Instead the Court decided the same-sex marriage issue itself, and thus set this conflict in motion.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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