Princeton Law professor Robert P. George wrote a compelling piece at First Things over the weekend. He likened a prospective decision in favor of same-sex marriage by the Supreme Court as lacking the constitutional muster that the Dred Scott v. Sandford decision did in 1857. The Court ruled 7 to 2 then that African-Americans, whether free or enslaved, could not be considered American citizens thereby lacking standing to sue in federal court. The Court also held that the federal government lacked the authority to regulate slavery in territories acquired after the creation of the United States. The result
It was only the second time that the Supreme Court ruled an act of Congress to be unconstitutional.
It is considered by many legal scholars to be the worst decision made by the Supreme Court. I would add Roe v. Wade as a decision worthy of that title having many of the same problems (as George notes plagued many decisions made by the Warren Court).
George contends that the Dred Scott case was not just about slavery. “It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation,” George writes.
He makes that comparison not because he sees same-sex relationships in the same light as slavery. Instead he notes five justices are signaling they will legislate from the bench with no constitutional warrant to impose their own beliefs about the definition of marriage on the entire country. He said Republicans today should treat it much like Lincoln and Republicans treated the Dred Scott decision:
If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives. They should refuse to treat and regard it as a binding and settled matter. They should challenge it legislatively and give the Supreme Court every opportunity to reverse itself—especially as new justices fill vacancies. And they should work to fill vacancies on federal courts at all levels with jurists who reject judicial usurpation and can be counted on to respect the scope and limits of their own constitutionally specified authority.
In a nutshell, don’t give up on the fight.