Why might he write that? Here’s his explanation:
Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.
In other words, if five Americans, strictly by virtue of the fact they hold the title “Supreme Court Justice” can say there is a right to have government take affirmative action to do something—like issue a license that no enacted state law has authorized—as opposed to merely refraining from action, and the only reason for them not to do that is whether others “are willing to tolerate it,” then, to that extent, the U.S. Supreme Court is the supreme legislative body over the states and, presumably, over Congress, too.
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Allowing this kind of power to be exercised by a “bare majority” of nine Americans explains why the confirmation of justices to the U.S. Supreme Court is so fierce—our elected U.S. Senate is deciding who will be supreme in regard to establishing public policy for the nation and how much power these supreme rulers will allow to them. Confirmation is the ultimate battle for the balance of powers in our country!
CLEAR EVIDENCE OF A RIPPLE EFFECT
It would not have to be this way if Congress would exercise the other checks it was given to keep the federal judiciary from operating outside the scope of its constitutionally delegated powers, but it hasn’t and, sadly, there is no reason to expect it will.
Actually, Justice Alito’s concern is based on an assumption that governing bodies other than Congress will use the authority they have under the state and federal constitutions to check the pretense to power asserted by the Obergefell majority.
IS THERE A SOLUTION? YES!
Here is what he said: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” And, in his assessment of the past, his concern is justified. But . . .
Justice Alito, along with Justice Thomas and Chief Justice Roberts, did not see the cure that Justice Scalia subtly suggested—the people of the states, like those who support this initiative, confronting the Court with its impotency when it comes to enforcing judgments like the one in Obergefell.
Here is how Justice Scalia framed his suggested solution, the one being followed by the God-Given Marriage initiative.
UNDERSTANDING JUSTICE SCALIA’S SUGGESTED SOLUTION TO THE ALITO OBSERVATION
First, alluding to Proverbs 16:811, he recognized the same prideful arrogation to power that Justice Alito noted, but he went on to note where such always ends, even if later rather than sooner:
In his next sentence, Justice Scalia quoted Federalist Paper No. 78 to note the proper constitutional limits of the judiciary’s power—simply to pronounce a judgment to resolve a particular dispute among particular parties—and to note who within civil government is charged with giving those judgments effect: The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.
In other words, the Court does not have
- any real means of “force” by which it can give effect to its judgment, other than power to hold the official against whom the judgment was entered in contempt of court, and,
- it has no “will,” meaning legislative power to make a law that imposes on the whole of the people the holdings underlying the reasons for its judgment.
This last point is an important but ignored constitutional check and balance. It means the U.S. Supreme Court can hold the particular state or local official against whom the judgment was entered in contempt of court if that official does not give effect to (obey) the court’s judgment; however, the Court cannot hold in contempt any officials who are not subject to that particular judgment (no “force”) nor can it impose (no “will”) on the whole of the people of a state a law that conforms to the holdings that explained the Court’s judgment.
This is what Justice Scalia meant with his concluding observation, which was actually a subtle challenge to state officials:
This initiative is designed to take the step Justice Scalia commended to us. If the Court wants to announce new “rights” that depend on legislation for them to be given effect, then just don’t pass the legislation. Courts have no power—they are impotent—to make any legislative body enact a law.
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Thankfully, the General Assembly in Tennessee enacted House Joint Resolution 529 in 2016 in response to Obergefell. Here are the resolving clauses to that resolution, and you’ll notice it even quoted Justice Scalia’s “solution”:
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ONE HUNDRED NINTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, that this body expresses its strong disagreement with the constitutional overreach in Obergefell v. Hodges that, in violation of the constitutional and judicially recognized principles of federalism and separation of powers, purports to allow federal courts to order or direct a state legislative body to affirmatively amend or replace a state statute.
BE IT FURTHER RESOLVED, this body concurs in the opinion of Chief Justice John Roberts, who in his dissent in Obergefell v. Hodges, said, “the Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it,” and acknowledges the reminder of Justice Antonin Scalia in his dissenting opinion in Obergefell v. Hodges that “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the reasoned judgment of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
IS THERE HISTORICAL PRECEDENT FOR TAKING SUCH A POSITION WITH RESPECT TO DECISION OF THE U.S. SUPREME COURT?Yes. Perhaps the last federal official to understand these three points and give voice to them was President Abraham Lincoln, who, in his first inaugural address, made this constitutionally correct statement following the U.S. Supreme Court’s awful decision involving former slave Dred Scott:
Clearly, Lincoln’s last sentence has proved to be the case with respect to the Obergefell decision—it was a political, not constitutional, decision, so we should not be surprised that resistance to its unconstitutional overreach will be used for “political purposes” by those the Court politically favored. They will use all the political power they can muster to prevent that overreach from being checked by those who, because of their political office, have the power to do so.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
And that is why this initiative is coming from the people and being directed to their elected representatives.
 “Pride goes before destruction, and a haughty spirit before a fall” (Proverbs 16:8, NKJV).