The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26

"Those who founded our country would not recognize [Justice Kennedy's] conception of the judicial role."

June 26 is a very significant day in Supreme Court history. On, 6/26/2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas. On 6/26/2013, Justice Kennedy wrote the majority opinion in U.S. v. Windsor. And on 6/26/2015: Justice Kennedy wrote the majority opinion in Obergefell v. Hodges.

The last of these opinions was the most significant. June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn't you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy's clerks "pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community." And so it came to pass.

It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass. In 2013, the 538 Blog offered this forecast for support for same-sex marriage. In the brief period between Windsor and Obergefell, I would share this chart with my students. In hindsight, it seems so quaint.

 

Alas, this process would never be completed. Chief Justice Roberts stated the issue plainly in one of his greatest dissents:

Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

This windup brings me to remarks that Justice Kennedy made--on all days--June 26, 2025.

"Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be," Kennedy said during an online forum about threats to the rule of law. "If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk."

I suspect that Justice Kennedy sees President Trump as a threat to Democracy--a threat heightened because Kennedy chose to retire under Trump. I think back to that moment at the White House where Kennedy wagged his finger at Trump over something, and Trump just walked away. How will Justice Kennedy discuss that incident in his memoir?

Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.

On this eve of Independence Day, we should not lose sight of the most important freedom--the right of self-governance. Here I quote from Justice Scalia's Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

I still miss Justice Scalia. No one on the Court can come close to his prose. Alas, as evidenced by Skrmetti, we are still living in Justice Kennedy's shadow.

Comments

[Poxigah146]

I miss Scalia's prose, but not his intellectual dishonesty. He didn't practice what he preached. He called himself an originalist, until the originalism brought him to a conclusion he wasn't willing to accept, like gutting most of the U.S. Code (Raich) or finding a 2nd Amendment right to own machine guns.

[Riva]

Yeah, who needs a justice who believes that the constitution should be interpreted reasonably giving the text the meaning it had when it was adopted in order to respect the democratic process. That would severely limit a judge's ability to legislate by judicial fiat and simply take all the fun out of being a judicial activist.

[Supremacy Claus]

Kennedy was a Harvard indoctrinated America hater. The Supreme Court is filled with his type. Marriage is to force the male to stay with a family. Bastard children are devastated by their single mothers. The lawyer has destroyed the American family. There is a high money bounty on family destruction today. This is to enrich the lawyer profession by the plunder of the assets of productive parties. I used to think Family Law was biased against the male. Then I heard about the nightmare divorce of a female physician from a lawyer husband. Only a self-defeating moron productive person would get married today. Thank the lawyer profession for destroying the American family, first the black family, then the white family. All the social pathologies of the black population will now visit the white population. There are no significant genetic differences between the races. Family Court judges must be severely punished. All are vile anti-family lawyers. All allegations of abuse in the context of divorce are false in the absence of recordings. People making false allegations should get sentenced for criminal perjury and pay all legal costs. Judges empowering false reports should be fired and lose their licenses.

Gay marriage will never be more than a friendship. It is another lawyer fiction. Gays have above average incomes. Very few have been stupid enough to fall into that lawyer trap. Whites are down to 50% married. Gays are at 10%. Good for the gays. Their divorce rate is high. The physical abuse rate in lesbians is high. Anyone condemning abuse must take the victim home for a week. Report. These stats have been true in Europe with its longer history of gay marriage.

[not guilty]

Uh, marriage does not "force the male to stay with a family." It just doesn't. And in the case of a man who, despite being attracted to men, enters into a sham marriage with a woman, how is his staying in the marriage while having loads of hot monkey buttsex with men on the downlow a good thing? That wife deserves better.

[bratschewurst]

At oral argument in Shelby County, he claimed that the fact that the VRA passed with large majorities proved it was not actually what Congress intended. Mind-blowing.

[Riva]

No, he had concerns over the constitutionality of the VRA federal oversight but interesting to see that you seem to believe a Congressional majority can override constitutional limitations. You’d be wrong about that by the way.

[not guilty]

I haven't formed a strong opinion on whether Hell is an actual, literal place of torment or not. If it is, Anthony Kennedy and the rest of his Bush v. Gore, 531 U.S. 98 (2000) brethren and sister surely deserve to burn there for that abomination, including the Iraq war that ensued from George W. Doofus's daddy issues.

But Kennedy can't be faulted for his lesbian and gay rights decisions.

[Martinned]

Euh... As far as I can tell you could do with some more people lecturing you about democracy. Maybe eventually you'd listen.

[Doug Heffernan]

Not a chance. Blackman sees it all upside down. He sees Justice Kennedy as a subverter of democracy, while Trump is a defender of Democracy. Not only that, Blackman thinks Kennedy is such a subverter that he should keep quiet (or look within himself) about threats to democracy, rather than critique Trump's actions.

[Sarcastr0]

Apart from the fact that this whiney partisan opinions shit diminishes the Conspiracy, I find it notable that Blackman apparently least dips into political opinion with his students.

[LexAquilia]

I'm glad you added this. The Conspirators definitely need to be on the lookout for keeping in good standing with you, Sarcastr0.

After all, you are a very important bureaucrat civil servant, and as such it's your duty, as our better, to guide us and make sure we live up to your standards.

Thank you, Papa Sarcastr0, because without you I would not know how to live!

[SRG2]

Josh seems to think that the right to self-governance includes the right to impose your views on others.

And ut's a strange argument, that the SC should rule on the basis of what the majority wish

[Mr. Bumble]

The SC should rule on what the law is and nothing more.

[LoganMankins]

“And the law happens to align with my ideology”.

Senators and presidents don’t fight like hell for judicial nominations because judges “rule on the law” - it’s a partisan outlet. If you think it’s not, can I inspect your wallet?

[Nelson]

So the Constitution isn’t the law? Weird take you have there.

[SRG2]

I assume you're unaware of even the most basic aspects of jurisprudence.

There is an old tale of three baseball umpires talking about balls and strikes:
#1: "I calls 'em as I sees 'em"
#2 "I calls 'em as they are"
#3: "They ain't nothing until I calls 'em"

There are many instances where there is no law until the SC decides it, sometimes because the issue was customary but had never previously made it to the SC, sometimes because new legislation admitted of two interpretations and neither was obviously more correct than the other. And then there are times when the SC considers that a prior SC had been mistaken. Every time Thomas dissents against stare decisis he is saying that the SC was mistaken and by implication the law is not what everyone thought it was. Etc etc.

And what do you do when the text explicitly says A, but we're sure that the legislature never envisaged later consequences of that text?

[Sarcastr0]

It's a ridiculous argument, boiled down - 'you cannot favor democracy and the bill of rights at the same time.'

Because it's not an argument - Blackman certainly believes in plenty of rights he likes - it's just Blackman being a hater.

[Brett Bellmore]

No, you can't favor democracy and pretending democratically unpopular things are in the Bill of Rights at the same time.

And when you're 'interpreting' into a longstanding amendment the implications of a defeated constitutional amendment, the ERA, yeah, you're just pretending.

[shawn_dude]

Yes, you can.

"We all vote to agree to these basic set of rights, some of which we may not like under certain circumstances, but all of which we agree will make for a better country."

The whole point of living in a plural society is understanding that things one person doesn't like should be okay for others.

[LexAquilia]

Yes, like compassionate conversion therapy.

[Nelson]

Which doesn’t actually happen. Repressing gay feelings and not being gay any more aren’t the same thing. The former is real and the latter is fantasy.

[LexAquilia]

Let me guess, you don't believe orientation can't change in humans, even though there is ample evidence to suggest otherwise, but you also believe human sex can change even though there has never in the history of humanity been a case of human sex changing.

[Nelson]

No.

[not guilty]

Orientation is inborn, but there are nevertheless a hell of a lot of ex-straights.

LexAquilia, when did you make a conscious choice to become straight? What criteria did you use in deciding? Did you try both straight and gay sex for sake of comparison? If not, how do you know you have "chosen" correctly?

[Brett Bellmore]

And the point is that it's pretending that something is in the Bill of Rights, in order to prevent democratically elected government from doing something popular and actually constitutional, that is an attack on democracy.

Nobody thought the 14th amendment mandated this outcome until the judiciary started imposing SSM on the country in opposition to public opinion. If anybody had thought that, the ERA would have been totally redundant!

Instead, the moment it was suggested that the ERA might imply legalizing SSM, the amendment died.

This isn't merely an unjustifiable interpretation. It's a right the people affirmatively refused to put in the Constitution.

[Nelson]

“ Nobody thought the 14th amendment mandated this outcome”

No, Brett. No non-moderate conservative thought this. Any non-homophobic, literate person thought that equal protection didn’t come with an “except for gay people” clause. It’s you and your fellow travelers who wish to ignore the Constitution.

“ If anybody had thought that, the ERA would have been totally redundant!”

It is. But history shows that conservatives don’t like equal treatment for disfavored groups, so this was the way to make it plain and clear. Cultural conservatives have a really hard time letting other people live their lives in ways that don’t hurt anyone else. They’re insufferably self-righteous like that.

[Brett Bellmore]

No, you're anachronistically attributing modern leftist thinking to people generations past. Literally nobody at the time the 14th amendment was written and ratified would have thought it required SSM; Sodomy was a crime in every state at the time, and not even controversially so. If people had thought that the 14th amendment actually implied any such thing, it would have been rewritten to clarify that it didn't.

And, again, when the ERA was proposed because it was understood that the 14th amendment didn't require treating men and women alike, the mere suggestion that it might require things like SSM was enough to kill it.

[apedad]

Justice Scalia addressed this.

"In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), Justice Scalia, writing for a unanimous Court, declared that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79."

[Nelson]

Equal protection is a Constitutional guarantee. Whether the Founders were homophobes or not doesn’t really matter, does it? If everyone is due equal protection and a law tries to revoke equal protection, the Constitution wins.

That’s why laws are called “unconstitutional” when the law and the Constitution are at odds.

[bernard11]

Literally nobody at the time the 14th amendment was written and ratified would have thought it required SSM;

You have no idea if this is true, and in fact it is overwhelmingly likely to be false.

It is also irrelevant. People at the time based their views on the state of their knowledge and the opinions of society. They didn't closely read the 14th and come to conclusions.

Indeed, it's plausible that most people at the time never considered the question at all.

What we do know is that the Equal Protection clause contains no exceptions for gays. Once again, I remind you that you are the one who argues that the way to understand the Constitution is just to read it. Well, go ahead.

As it is you seem to be an advocate of a new form of originalism - call it living originalism - which interprets the Constitution in terms of what it imagines the drafters thought about things.

[Poxigah146]

Of course it doesn't contain exceptions for gays. Because gays were always treated identically to everyone else.

[David Nieporent]

Instead, the moment it was suggested that the ERA might imply legalizing SSM, the amendment died.

This is of course Bretthistory, the companion to Brettlaw. Brett has created this fake narrative where the ERA was passing, and then someone said, "Hey, this could lead to gay marriage," and people gasped and said "Oh no" and immediately pulled the plug on the thing. But: no. The ERA did not "die." It ran out of time for ratification. (Which is not to say that it necessarily would've been ratified if it hadn't expired; maybe its momentum would have permanently stalled out.) And there was no "moment" at which this happened (other than of course the ratification deadline).

[LexAquilia]

It would be nice if just once I read one of your comments and felt it was moving the conversation forward.

That would be nice. I'll let you know if it ever happens.

[thenotoriousrbg]

democratically unpopular things are in the bill of rights: freedom of speech. everyone loves their own speech, and hates their enemies'.

just look at free speech on campus. until 10/7, conservatives attacked universities for no-platforming conservative speakers, and censoring conservative viewpoints. liberals defended this censorship. after 10/7, conservatives canceled professors for pro-Palestinian/anti-Israel speech, and attacked universities for not cracking down on student protests. liberals defended academic freedom and the right to protest. the same trucks with ads saying "Harvard is the worst university for free speech" swiftly replaced those billboards with signs doxxing the students who allegedly signed the infamous letter blaming Israel for Hamas's terrorism.

the only people with clean hands are those who stay consistent when the sides flip.

free speech is always unpopular. that's why 1A exists.

[bernard11]

No, you can't favor democracy and pretending democratically unpopular things are in the Bill of Rights at the same time.

Question-begging.

It's not "pretending," even if it doesn't confirm to BrettLaw.

[Poxigah146]

I mean, that's exactly what self-governance is, the majority imposing its views on others.

People who say that don't actually oppose the concept, they only oppose it when the views being imposed don't line up with theirs.

[Nelson]

“ I mean, that's exactly what self-governance is, the majority imposing its views on others.”

And it’s what the Bill of Rights specifically and the Constitution in general were made to prevent, the majority infringing on the rights of disfavored people or repressing disfavored opinions.

There’s a line you can’t cross. That’s what the “inalienable” part of inalienable rights means.

[Poxigah146]

If 55% vote to put in an excise tax, is that infringing on disfavored people?

[thenotoriousrbg]

if the majority eschews democracy for autocracy, is it self-governance to abdicate self-governance?

[Nelson]

“ Josh seems to think that the right to self-governance includes the right to impose your views on others.”

This is the core belief of cultural conservatives. They don’t seem to recognize when social conservatism, where their personal beliefs dictate their own behavior, shifts to cultural conservatism, where their personal beliefs dictate everyone else’s behavior, it turns from something very good to something very bad.

The argument that if gays had just waited a few more years (or more) to get equal protection under the law, it would be valid, is bigotry in its basest form. And claiming that public opinion is the only way for equal protection to be valid (and that the courts have no role in protecting the rights of citizens) is majoritarian authoritarianism in its most vile expression.

He seems incapable of recognizing that his personal biases against gay marriage makes his take, not Obergafell, the one that subverts the Constitution’s promise of equal protection under the law.

“ Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.”

Even for Josh Blackman, this is incredibly dishonest and dumb. Apparently the Constitution doesn’t count as “the faintest patina of law”.

[Bob from Ohio]

"where their personal beliefs dictate everyone else’s behavior, it turns from something very good to something very bad."

You also agree that when a liberal or leftist lets their personal beliefs dictate everyone else’s behavior, that is bad?

[Nelson]

You’ll have to be more specific, since conservatives seem to think that legal abortion is liberals forcing their views on others, when it is only allowing people to make the choice for themselves.

But in general, yes. For example, hate speech laws are awful, as are hate crime enhancements. That’s the most obvious example to me.

[Bob from Ohio]

"Josh seems to think that the right to self-governance includes the right to impose your views on others."

No liberal or leftist ever sought to impose their views on others of course.

[Nelson]

Whatabout! With a health dose of strawman thrown in.

[bernard11]

So you concede Nelson's point about cultural conservatives.

I guess if a Republican commits murder he should go free because a Democrat once committed murder.

[Kazinski]

But really the fact that the Supreme Court had to rule on gay marriage at all was a judge made problem.

Before the State Supreme Court opinions in Hawaii and Massachusetts there were exactly 0 state constitutional prohibitions against gay marriage, and a simple legislative majority could pass it. Then over the next decade more than half the states implemented state constitutional provisions banning SSM, and requiring either super majorities of the legislature or statewide ininitives or propositions.

The activist state Supreme Courts set back SSM by about 2 decades.

[LoganMankins]

Blackman thinks democracy is only applicable for liberal decisions (eg gay marriage) but not conservative ones (guns).

[Poxigah146]

Given that the Constitution explicitly protects gun rights and takes it out of the hands of democracy, that's not an unreasonable position.

[LoganMankins]

Where does the constitution say anything about THT? That was just judicial fiction.

[MollyGodiva]

Same place the Constitution explicitly says the President can fire anyone he wants in the EB and the President has immunity from criminal prosecution.

[LexAquilia]

... for lawful acts.

You drama queen. If you're gonna be dishonest, stay on Bluesky with the rest of BlueAnons.

[David Nieporent]

Um, no. People don't need immunity for lawful acts, since one already can't be convicted of lawful acts. The purpose of immunity is to protect from prosecution for unlawful acts.

[MollyGodiva]

It explicitly protects militas. Republicans have expanded that to protect individuals with guns.

[shawn_dude]

I thought we were drawing a distinction between the Constitution and the Bill of Rights on this particular thread?

[Brett Bellmore]

No. It explicitly protects the right of the People, NOT militias. And that was deliberate, because if it had been written as you propose interpreting it, you could have made the amendment go away by just discontinuing the militia system. When the whole point was to make sure a militia could be raised in an emergency even if the people running the government wanted to abolish the militia system.

Seriously, we have plenty of contemporary discussions of what this amendment meant, so it gets rather tiresome when its opponents start misrepresenting it's meaning, and relying on ignoring what the text actually says to do it.

Here's what Tench Coxe wrote about it, in a public editorial during the debate about adopting the Bill of Rights:

"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

The people, and their private arms.

And lest you claim that this was an idiosyncratic view, Madison actually wrote to thank him for writing it!

"Dear Sir

Accept my acknowledgments for your favor of the 18th. instant. The printed remarks inclosed in it are already I find in the Gazettes here. It is much to be wished that the discon[ten]ted part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Reps. had this twofold object in view; besides the third one of avoiding all controvertible points which might endanger the assent of ⅔ of each branch of Congs. and ¾ of the State Legislatures. How far the experiment may succeed in any of these respects is wholly uncertain. It will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen."

[MollyGodiva]

"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

How is that going for us? Not well. If cops even think you might have a gun they will murder you.

[Brett Bellmore]

Yeah, the modern government is much more aggressive and powerful than the Constitution contemplated. That doesn't justify misinterpreting constitutional amendments to make it even worse.

[Bunny495]

"How is that going for us? Not well. If cops even think you might have a gun they will murder you."

Friends don't let friends post when using cheap drugs.

[Brett Bellmore]

"What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass."

What this ignores is the likelihood this trend was a result of the lower courts repeatedly striking down democratic opposition to SSM, rather than an organic change in public opinion.

By the time the Supreme court stopped refusing challenges to lower court decisions imposing SSM, it was already the judicially imposed law of the land in most of the country, and in much of the country had been for years. Opponents were beaten down, had it repeatedly proven to them that the judiciary wouldn't PERMIT public opposition to matter. That it was futile to oppose it. You're looking at resignation, not support.

Would public opinion have changed in that way if advocates of SSM had been limited to persuasion, rather than having the courts steam rollering over all opposition? I'm not convinced.

You're mad that the Court didn't wait until SSM was actually popular, but legally, what excuse did they have for even waiting as long as they did? They should have taken the first appeal, not the last!

They let the lower courts persecute a war against democratic rule, and then went out on the battlefield mopping up the survivors only after the war had already been won. And you're mad that they didn't delay even longer, let the whole charade that we still had a democratic form of government continue for another decade while the lower courts finished off the last of the opposition, and apathy had completely set in.

When their real sin against democracy was not taking the very first appeal.

[Poxigah146]

Ehh, I do think the opponents did feel some resignation, but I think public opinion changed more because the media gave a very biased presentation of the gay population.

[Nelson]

What, that they’re exactly like the non-gay population? How dare they!

[Brett Bellmore]

Well, obviously they're not exactly like the non-gay population, or they'd be straight. 😉

They're also not exactly like the non-gay population in some interesting other regards, like STD rates, (Extra low for lesbians, extra high for male homosexuals.) or divorce rates. (The opposite.)

I found the divorce rate differences very interesting: Apparently when gays DO marry, the men have lower divorce rates, and the lesbians higher, than for mixed sex marriages. I guess that tracks, though, because most straight marriage divorces are initiated by women, too; Lesbians have twice as many women to initiate a divorce per marriage...

[Sarcastr0]

Holy fuck you're still onto the SSM decision was a conspiracy?

You're really so turned in on yourself you can't believe a thing you don't like was and is legitimately popular, and legally legitimate.

[Brett Bellmore]

Holy fuck, I dare to continue to disagree with you. The nerve of me.

"you can't believe a thing you don't like was and is legitimately popular,"

As the chart above, and numerous polls and ballot initiatives at the time confirm, no, SSM Was NOT popular at the time. Even if you say it's popular now, and not just resignation, that didn't happen until AFTER the judiciary had already imposed it on the majority of the country by over-ruling multiple popular votes.

Your finally winning over public opinion after the fact doesn't retroactively make SSM popular at the time the judiciary imposed it.

[LexAquilia]

He doesn't honor history as it happened, only history as he wished it did. That's how he stays on the Right Side of History.

[Zarniwoop]

What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass.

Josh thinks state legislators are going to implement the preferences of 50.1% of the populace? How quaint!

57% of Floridians voted to legalize abortion up to viability in 2024 … Florida still has a 6 week limit. Remind me again how well legislators listen to their constituents when it comes to socially divisive topics.

[Poxigah146]

If you're going to mention that, why don't you mention the flip side, transgender nonsense, in blue states?

[LoganMankins]

“Transgender nonsense”

Just put the fries in the bag bro

[Nelson]

Which “nonsense”? And please be specific, because some issues are nonsense in on direction and others are nonsense in the other.

[Poxigah146]

Boys playing in girls' sports because they identify as a girl. That is overwhelmingly opposed by the people everywhere, but the Democratic controlled states dictate otherwise.

[Bunny495]

"57% of Floridians voted to legalize abortion up to viability in 2024 … Florida still has a 6 week limit. Remind me again how well legislators listen to their constituents when it comes to socially divisive topics."

The 57% was still not enough for the super majority needed, something you FAIL to point out. As a rule socially divisive topics often require a super majority since there are strong feelings on both sides. While I am mostly agnostic about abortion I do understand that others have strong feelings on both sides. I would point out that in a lot of the EU there is a 5-week limit. Maybe a bigger consideration is the issue of who is paying for an abortion. When who pays the piper is brought into the question things can change really fast.

[jb]

"It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell."

This from a law professor?

He can't think of a single more harmful case. Not Dredd Scott, not Korematsu, not Buck v Bell? Or, even looking at it through a conservative lens, not Roe or Kelo?

[Poxigah146]

I think Obergefell and Roe were equally bad.

[Supremacy Claus]

I support Roe. Without Roe, there would be 60 million more Democrats of voting age. 20 million would be black. Imagine this country without Roe.

[MollyGodiva]

You don't like Loving either?

[Brett Bellmore]

Loving was just the Court's long delayed repair of the damage they did with Pace v Alabama. As I've related before, legalizing interracial marriage was an expected application of the 14th amendment, one of the arguments made against it, and one the courts and legislatures swiftly started implementing before the Supreme court perpetrated Pace as part of their program to end Reconstruction.

Very unlike Obergefell in that regard.

[Nelson]

Except, of course, the whole equal protection thing.

[Brett Bellmore]

Nope. Loving confirmed that intersexual couples could marry, but it was still "marriage" as traditionally defined. What the judiciary did in the case of SSM was to change the definition of "marriage" to remove the part about the parties being of opposite sex.

So gays went from being able to marry, which they simply happened to not want to do, to also being able to "marry" as the judiciary had redefined it.

[Ridgeway]

Loving is only part of the picture. You also have to look at Lawrence v Tx and Romer v Evans. Those three cases taken together make the result in Obergefell unavoidable.

[Brett Bellmore]

Still makes you wonder what the point of states being able to refuse to ratify amendments is, if the courts are free to just read existing parts of the Constitution to do the work of defeated amendments.

I think there should be a legal presumption that, once an amendment to some effect has been defeated, it is illegitimate to reinterpret any existing constitutional text to achieve the same outcome.

[thenotoriousrbg]

I'm assuming you'll invalidate the Controlled Substances Act, since Prohibition required 18A?

[bernard11]

Kind of runs counter to your usual arguments doesn't it?

I mean if voters today think some amendment should fail, what does that have to with interpreting the existing Constitution, by reference to what the drafters thought and did?

Modern attitude, conditions, and knowledge don't matter to you.

[Bob from Ohio]

"Lawrence v Tx and Romer v Evans"

Both Tony K. specials.

[Poxigah146]

I'm pretty sure he's a closet homosexual.

[Nelson]

“ So gays went from being able to marry, which they simply happened to not want to do”

Brett, even for you this is revisionist history on steroids. Before Obergafell gays could always get married, they just didn’t want to? What?

If two adults are allowed to enter into a marriage, any restriction on the type of adult that wants to do so is a violation of equal protection. There is no justification for saying heterosexuals yes and homosexuals no because it is a clear violation of equal protection.

I get that traditionalists get their panties in a bunch over what marriage “really” means, but they have been complaining about every newfangled idea since the country started. Traditionalist are people who can’t find a logical reason their ideas are right, so they fall back on “it’s always been like that”. Which isn’t a good reason for anything.

[Life of Brian]

Before Obergafell gays could always get married, they just didn’t want to? What?

Before Obergefell, gays certainly could marry opposite-sex partners. Some took that path; many didn't.

[bernard11]

What a horseshit argument from you and Brett. It really is jackassery.

Before Obergefell gays were free to marry people they didn't want to marry. Sort of like banning kosher food and then claiming orthodox Jews still have plenty of things they can legally eat, so what's the big deal?

The argument is formally correct, but utterly unrelated to reality.

Besides, what's the big deal about SSM, anyway? I don't care if the public opposed it. It's none of the public's business.

[Poxigah146]

You're begging the question. A marriage being one man and one woman was literally the definition. You redefine it to be "two adults" to suit your purpose.

[not guilty]

"What the judiciary did in the case of SSM was to change the definition of "marriage" to remove the part about the parties being of opposite sex.

"So gays went from being able to marry, which they simply happened to not want to do, to also being able to "marry" as the judiciary had redefined it."

No, Brett, Obergefell v. Hodges, 576 U.S. 644 (2015), did not "redefine" marriage. Every dyad pair that was eligible to marry on June 25, 2015 remained eligible to do so on June 27, 2015. The rights and obligations of marriage remained the same. The only difference was that a greater universe of dyads became able to avail themselves of such rights and obligations.

While Solomon was king of Israel, his marriage included one man and 1,000 women (700 wives and 300 side pieces). 1 Kings 11:3. The Hebrew Bible records the names of eight wives of King David. https://www.biblestudytools.com/bible-study/topical-studies/how-many-wives-did-king-david-have-and-what-do-we-know-about-them.html Does David being polygynous mean that Uriah and Bathsheba were somehow not "married" when David raped Bathsheba and ordered Uriah be moved to the front lines of battle to be killed?

[Nelson]

“ I think Obergefell and Roe were equally bad.”

Gee, what a shock. The homophobe doesn’t like treating gays equally.

[Brett Bellmore]

I think there were certainly worse opinions, in general terms. Specifically on the metric of damage to democracy? That's harder to argue.

You have to distinguish between opinions that wrongfully allow democratically elected governments to do what the Constitution legitimately prohibits, (Certainly Kelo falls into this category, one might argue Buck does, too.) and decisions that wrongfully prohibit democratically elected governments from doing what the Constitution legitimately permits. (Roe, for instance, or Obergefell.)

Wrongfully permitting democratically elected governments to do the unconstitutional can be bad, but it's not bad in a "thwarting democracy" sort of way.

Well, some of the decisions upholding Jim Crow managed to be bad in both regards, because the unconstitutional thing the Court let the states do WAS to attack democracy.

As I've said, what was most egregious about Obergefell is that the Court spend so long refusing appeals of lower court rulings, allowing the assault on democracy to continue, and reliance interests to accumulate. Really, I think they knew all along how they intended to rule on the topic, and were just letting the lower courts take the heat until the public became resigned.

[Sarcastr0]

decisions that wrongfully prohibit democratically elected governments from doing what the Constitution legitimately permits

Dredd Scott, king of the anti-cannon, is within this set.

Recency bias on steroids.

[Brett Bellmore]

Yes, Sarcastr0, Dred Scott is indeed within the set of decisions that wrongfully prohibited democratically elected government from doing what the Constitution legitimately permits. It overturned the Missouri Compromise, which was a democratically arrived at decision to not allow slavery to spread any further. It also overturned the elected government's decision to treat blacks as citizens.

If it's Blackman you're accusing of recency bias, I think it's a fair cop.

[LexAquilia]

Don't treat him better than he treats you. You don't need to validate anything he says.

[Brett Bellmore]

I'll validate anything he says that I think is right.

[Sarcastr0]

You re: Obergefell: "Specifically on the metric of damage to democracy? That's harder to argue."

You adopted Blackman's argument.

[Brett Bellmore]

Yeah, that's Sarcastr0 all the way: People aren't allowed to think there are arguments on both sides of an issue.

The argument for Obergetfell causing greater damage to democracy than Dred Scott, (As opposed to human rights.) would be that Dred Scott didn't actually force any free state to adopt slavery, or cease treating their local blacks as citizens. It really didn't do much functionally beyond establishing that existing slaves couldn't gain their freedom by stepping into a free state.

And, sure, that was huge damage to human rights, but we're discussing damage to democracy here, not human rights. To a large extent they're actually contrary values, you know.

[Sarcastr0]

For fuck's sake.
Go die on this hill. It's too idiotic to engage with.

[Mr. Bumble]

...and yet you troll all of his comments.
What a douche.

[LexAquilia]

Nice flounce after getting taken to school.

[bernard11]

People aren't allowed to think there are arguments on both sides of an issue.

Brett, I know you don't believe it,, but claiming that those who don't agree with you don't have legitimate arguments describes about 75%+ of your comments. It's always a conspiracy, or some nefarious plot, which what you are claiming wrt SCOTUS and SSM.

[bernard11]

Really, I think they knew all along how they intended to rule on the topic, and were just letting the lower courts take the heat until the public became resigned.

Of course you do, because you're a paranoid who sees devious plots everywhere.

You know, Obergefell was a 5-4 decision. If the scheme was to delay it's coming before SCOTUS so as to let popular support build, why didn't the conservative Justices vote to grant cert much earlier?

More simply, neither the conservatives nor the liberals had the votes to stop the case from reaching the court. So who were the plotters?

[notof45535]

the same people who think "the right of the people to keep and bear arms shall not be infringed" allows for gun bans also think that vague references to due process and equal protection creates a "right" of a woman to kill her baby and a "right" of a gay man to insert his erect member into another man's sphincter, shoot a powerful load of HIV infected splooge inside, and get "married." they're sick sick people.

[apedad]

Hmmm...I don't see any states changing from Blue to Red on the chart above.

And - across the board - there's an universal increase in each state supporting SSM.

[Brett Bellmore]

That's because only the first column represented actual data. The subsequent columns represented projections assuming a uniform national trend of increasing support for SSM. NOT actual data. So of course you see a clean increase, that was built into the model.

Here's subsequent national polling data.

As you can see, public opinion did continue increasing support for SSM after the Court imposed it nation-wide, but hardly monotonically, and it's quite possible support has actually declined in some states.

[apedad]

Thanks for that and I'm optimistic about the future especially with: "Among Republicans under age 50, about 6 in 10 say same-sex marriages should be legally recognized, the Gallup poll finds. That stands in stark contrast to just 36% of Republicans over 50 who say the same —- suggesting that views on the issue could continue to shift."

[Nelson]

Because the only thing worse than a conservative who wants to force their social beliefs on everyone else is an old conservative who wants to force their social beliefs on everyone else.

Cultural conservatives hate letting people make their own decisions because people keep rejecting coercive conservatism.

[apedad]

"Coercive conservatism" feels . . . oxymoron-ish.

[LexAquilia]

Have you been alive for the past 10 to 20 years to witness the global warming scam, BLM, gay "rights", and tranny hysteria?

[Nelson]

You mean the “ global warming scam” which is demonstrably true, but no one is forced to agree with? The fact that you say “global warming scam” is proof of that.

Or BLM, which is an organization that no one is forced to belong to with ideas that no one has to follow and no legislative power whatsoever? The fact that it exists doesn’t force anyone to do anything.

Or gay rights, which is just equal rights, which is a promise of the Constitution.

Or tranny hysteria, which is a perfect example of coercive conservatism? Although I’m certain you don’t realize the hysteria is on the conservative side. It’s just anti-gay nonsense from the 70s and 80s with one word changed.

None of those things are coercive, unlike abortion bans and book bans and gay marriage bans and any one of a thousand other bans on newfangled behaviors that make conservatives unhappy.

[Brett Bellmore]

The right has largely given up this particular fight as irrevocably lost. We may think we lost it to illegitimate judicial usurpation, and we're ticked off about that, but we still lost it, and there's likely no going back.

By contrast, the fight over transgenderism seems very winnable, and the courts don't seem likely to pull out that judicial steamroller they used for SSM. (I do wonder what they will fire it up again for? It's not likely to be a one time thing.) Probably because the transgender cause is just way more extreme, and they really over-reached in going after children.

[apedad]

Everything was "extreme" at one time: blacks and women voting, Loving, Obergefell, etc.

[Brett Bellmore]

Some things actually ARE extreme, apedad.

[Nelson]

But that isn’t, and never should be, a justification for preventing someone from doing something. I think people who choose to get a brand or ear plugs or fake boobs or facial surgery to look like a cat are making extreme (and extremely bad) decisions. But that should never matter in whether or not they should be legally barred from doing it.

[notof45535]

normal, healthy, mentally sane americans close their eyes and into their heads pops an image of a gay man thrusting his erect penis in and out of another man's anus until he has a pleasurable, shuddering orgasm resulting in the powerful ejaculation of gobs and gobs of hiv infected man cream into the other man's colon. when they open their eyes, they're sweating and gag in disgust. liberals picture that and think "aww, what a sweet, healthy, courageous marital act between a husband and a husband!"

[Nelson]

“ We may think we lost it to illegitimate judicial usurpation”

You always are when the Constitution doesn’t let you be bigots. I doubt that will ever change.

“ By contrast, the fight over transgenderism seems very winnable”

The only difference between the anti-gay conservatism of the past and the anti-trans conservatism of today is the word after “anti-“. Literally the exact same specious arguments are being made, counting on the exact same disfavored status of the victims, with the exact same blind spot (ignoring that most people believe rights are universal).

The argument that transgender people should be prevented from being transgender because they make conservatives feel icky is something that decent people and those who love individual rights can see right through.

If someone wants to be transgender, why do you care? It’s a real thing, just like being gay. It’s a serious and life-altering thing, not the frivolous “trend” or “fad” that conservatives say it is, like being gay, and it’s treated as such. It’s not inherently evil or wrong or criminal, just like being gay.

While there are a couple things that can be justified by physiological differences (like post-puberty trans athletes competing as women), most of conservatives’ opposition boils down to “we don’t like the choices they have made for themselves”, like being allowed to be trans.

If your argument is that it is a bafflement to you, join the club. It makes no sense to me, either. But who cares? It isn’t me and someone else being trans doesn’t impact me in the least.

[bernard11]

We may think we lost it to illegitimate judicial usurpation,

1. If you think that you're delusional.

2. This a quote from someone who, in this very thread, accused Sarcastro of believing that, "People aren't allowed to think there are arguments on both sides of an issue."

Do you own a mirror?

[bernard11]

the Court imposed it

No. The Court didn't impose it. It allowed it.

The fundamental problem here is that you and your allies think SSM does great damage to society, in mysterious ways. This despite the fact that they can't specify what damage has been incurred over the past decade.

One might almost imagine they don't really think that, but that it makes a convenient cover for bigotry.

[Stuart]

The Chutzpah of Josh lecturing us about democracy on any day.

[Social Justice is neither]

Who does he think he is, a Democrat party leader or superdelegate?'

[MollyGodiva]

Constitutional rights do not exist a the whim of voters at the ballot box.

[apedad]

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Bored Lawyer]

Nor do they exist at the whim of a majority of SCOTUS justices. Which is what this line of cases represents -- judicial preference obscured by fancy legal jargon. (And not that well obscured, either.)

[bratschewurst]

“Those who founded our country would not recognize the majority's conception of the judicial role.”

Those who founded our country are turning in their graves at the current majority’s conception of executive power.

[Nelson]

Truer words have never been spoken.

[LawTalkingGuy]

“It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell.”

….this is one of the least true things any law professor has ever said, even from a “conservative” perspective.

[Nelson]

It’s Josh Blackman. He specializes in untrue things.

[LawTalkingGuy]

Roe was right there, man.

[Kords]

"It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell."

I actually choked reading this sentence. There are the culprits that should be obvious to virtually everyone within American political society: Dred Scott, Plessy, Korematsu.

And then there are the culprits that should be obvious to virtually everyone within American political society with a half-functioning brain: Shelby County, Citizens United, Brnovich, United States v. Trump, Rucho, Bush v. Gore, Trump v. Anderson.

And that is honestly just limited to cases that have a directly negative effect on democracy, unlike Obergefell that simply removed a particular issue from the realm of voters. Lord knows there are waaaaay more decisions I could list if I simply took such a liberal approach to deciding which decisions qualify as sufficiently antidemocratic.

[ChristopherJLinas]

The purest form of "self government" is the right of individuals to govern themselves. The lesser right of majorities to govern individuals only has value as a means to that end. Obergefell did not impose five lawyers' view of marriage onto the world--it liberated 300 million individuals to marry whom they choose.

Prohibition on same sex marriage implicates the equal protection clause. I happen to see it as a sex-based classification based on the logic that Adam can marry Christine, Betty cannot marry Christine, and the only difference between Adam and Betty is sex. However, it does not really matter if there's a suspect classification involved because prohibiting same sex marriage does not even pass rationale basis scrutiny.

[Nelson]

Well said.

[JoeFromtheBronx]

Yes. There are various ways to approach "self-government" and "democracy" including certain things left to individuals to decide.

[LexAquilia]

Did it liberate Adam, Betty and Christine who wish to be married too?

[ChristopherJLinas]

Now it's up to Christine which one she wants to marry.

[Nelson]

I would argue yes, although there isn’t the same parallel between banning one pair of people from marrying, but allowing another pair to do something, as there is between banning three people from marrying, but not two.

But I don’t care what kind of freaky shit people choose for themselves. BDSM, furrys, prostitutes, and other fringe sexual preferences are weird as hell and hold no appeal, but also shouldn’t be banned.

Marriage is just a contract between parties, so why not allow three instead of just two? It doesn’t infringe on anyone else’s rights.

I’ve been in a monogamous relationship with the same woman for 26 years (as of next week) and neither of us has ever wanted to get married. Which is a choice, and that’s the point. If it doesn’t infringe on anyone else’s rights, what is the justification for preventing someone from choosing something?

[JoeFromtheBronx]

Scalia was fine with unelected judges deciding social policy when he deemed it compelled by the Constitution. He wrote multiple opinions of the Court so proclaiming. Sometimes 5-4 opinions.

If people wanted to regulate firearm policy or allow race based affirmed action or require local sheriffs to do background checks or any number of other things, he would not let them in various ways.

The real battle here is over the merits, not some blanket appeal to majoritarian rule. Interracial marriage was quite unpopular in the late 1960s. Loving v. Virginia did not just leave it to the elective branches to decide. Mildred Loving understood the overall equal protection principle applied to same sex couples too.

Kennedy explained the dangers of waiting and leaving the rights of same sex couples and their families to the majoritarian process. JB understands that when certain rights he respects is involved.

I also think judges should not be "unaccountable." JB continuously angrily opposes multiple ways to keep them accountable, including ethics reforms. As to Scalia, as I said on this blog years ago in response to Prof. Kerr, his writing and rhetoric left something to be desired. Standard pablum like the final thing quoted, either way, doesn't require St. Scalia at any rate.

[ReaderY]

I have consistently taken the view that regulation of commercial relationships by the federal government, including legislating the morality of racial and sexual preference in commercial relationaships, should be treated constitutionally no differently from regulation of domestic relationships by states, and vice versa. Teying to look at things from a Martian point of view with no vested interest in any side, I see both as being essentially the same sort of morality legislation except one is in the state sphere and the other in the federal sphere.

In both cases, whether people with these sorts of preferences are bad people, or whether they are persecuted and misunderstood, is simply not for the courts to say. I don’t doubt that same-sex businesses can be just as productive and effective as gender-diverse ones, and people who prefer them equally good people. However, whether society wants to force gender diversity onto people who would rather be left alone to mind their own businesses in peace is up to legislatures, not courts. Same with domestic affairs.

That said, I think there is an enormous difference between going overboard on the libertarian side without constitutional warrant and going overboard the other way. I am thinking specifically of the Administration’s attempts to stymie enforcement of habeas corpus by first saying it can only be done for individual plaintiffs or as class actuons, and then attempting to stymie class actions by tactics like claiming they don’t intend to arrest the named plaintiffs at the moment, hence the named plaintiffs cannot represent the class.

I would, for all I have said for decades now on this blog about the excesses of the Court’s liberal wing, rather have socially disrruptive judge-made rights with no constitutional warrant for them than a world with no effective habeas corpus, and where enemies of the government can be disappeared into overseas concentration camps without recourse. Given a choice, I’d take Justice Kennedy over President Trump as the considerably lesser of the evils.

[David Nieporent]

It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell.

This isn't even good trolling.

[JoeFromtheBronx]

Okay. So, are the daily SCOTUS history posts no more, or are we going to get them back after a few days, like happened in the past?

https://www.captcrisis.com/

[Malika the Maiz]

So the idea is it must have been Matz who put any idea into Kennedy’s head about the timing because Matz is gay? Interesting to see Lat and Blackmun buy into basic DEI assumptions.

[Frank Drackman]

So a Dude can marry a Dude, but not his sister? Or his Pomeranian? How come?

Frank "doesn't want to marry a Dude, his sister, or Pomeranian, OK, maybe the Pomeranian"

[ChristopherJLinas]

You should just try Googling "why is it illegal for someone to marry his sister" to answer your question. I would do it for you, but I don't want that in my search history.

[Frank Drackman]

Feel sorry for whoever was your brother

[Brett Bellmore]

Incidentally, it IS kind of embarrassing that Blackman is using a dated projection of public opinion, rather than subsequent actual polls. He should do something about that.

[Nelson]

That would require intellectual honesty. He doesn’t have that in him.

[ScottK]

One could say also that it takes chutzpah for a "constitutional law professor" to be spamming a legal site with his nihilism.

[jimmy]

Shut up, Josh.

[Frank Drackman]

Can’t can’t can’t we all just get along? (HT (the late) R King)
How about we allow SSM but just between (actual) Chicks? (Hey Now!)
A form of “Affirmative Action” if you will, in 200-300 years maybe we extend it to the Peter Puffers

Frank

[notof45535]

When Democrats think of "love," they think of one deviant man rolling around in a bed, looking longingly at his "husband's" gaping butthole, and engaging in just enough foreplay to get his diseased ramrod hard enough to drive it into his lower intestine, thrusting in and out until a torrent of greasy, thick, HIV infused man juice goes flying into the inner sanctum of the other "man's" colon, gasping at the disgustingness of it all. Yuck.