Checking the Court
At the end of his dissent, at the end of the nearly one hundred pages of opinions in the most consequential Supreme Court decision in decades, at the end of a 2014–15 Supreme Court Term singular for its judicial activism, Justice Samuel Alito delivered these dispirited closing comments:
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
. . . .
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
For the mild-mannered Alito, this was practically a call to arms. That call is pregnant with implications: the Court’s 5-4 decision in Obergefell v. Hodges, creating a substantive-due-process constitutional right to same-sex marriage, Justice Alito seems to be saying, is more than “those with political power and cultural influence” should be “willing to tolerate.” And the remedy for such an intolerably activist, lawless decision cannot be left to the Court itself: “decades of at-tempts” to restrain the Court’s “abuse” of its constitutional power “have failed.” One cannot rely on the justices’ virtue, self-restraint, methodological discipline, or sense of humility to keep the Court from abusing power. The temptation is too great. To rely on the judiciary’s sense of restraint is in effect to accede to the “irremediable corruption” in constitutional interpretation that has become the salient characteristic of the decisions of the Court. Traditional notions of the proper constitutional limitation of the judicial power do not effectively constrain the Court according to Alito. The only real check against judicial abuse of power –the Court’s corruption! –is to check the judiciary from outside the judiciary.
