At the close of his dissent from the five-to-four decision in the Obergefell case granting same-sex couples the constitutional right to marry, Chief Justice John Roberts pouted. "Celebrate," he sniffed, sounding as festive as Ebenezer Scrooge. "But do not celebrate the Constitution. It had nothing to do with it."
Actually, the Constitution had everything to do with it. State laws denying marriage to same-sex couples, the majority held, violated the Fourteenth Amendment's guarantee that "[n]o State shall . . . deprive any person of . . . liberty without due process of law; nor deny to any person . . . the equal protection of the laws." Without the Constitution, same-sex couples would still be at the mercy of state legislatures.
Or, as Chief Justice Roberts put it, without a fiat issued by "five lawyers who happen to hold commissions authorizing them to resolve legal disputes," who subverted democracy and rejected a "restrained conception of the judicial role," the "winds of change" swirling around marriage would still be engaging the nation in a "fair and honest debate." One may or may not agree with the majority's analysis of the Fourteenth Amendment, but the insinuation by the leader of the judiciary that a conniving cabal conspired to concoct a right out of thin air raises questions about his commitment to constitutionalism.
At his confirmation hearings, Roberts likened the role of the judge to that of an umpire. It would be his job, he said, "to call balls and strikes." In his Obergefell dissent, accusing his colleagues of imposing their "personal preferences" on the nation, he made a similar point: "judges have power to say what the law is, not what it should be." That facile distinction, however, glosses over the heart of the Supreme Court's job, which is to administer the gloriously uplifting yet maddeningly vague provisions of the Constitution -- even in the face of democratically enacted laws.
Issues that reach the Court are not as simple as monitoring the strike zone, a task that machines can, and now sometimes do, perform ably. The sporting analogue more apt than an umpire would be, well, a judge, such as in figure skating. Skating judges pay close attention to technical issues, but they also are entrusted with rendering opinions based on, unsurprisingly, judgment.
Some of the Constitution sets out straightforward ball-or-strike calls, such as the presidential eligibility age of thirty-five. Much of it, though, requires thoughtful consideration. The Constitution is full of noble phrases that swell the citizenry with pride but that no mechanical umpire could apply. What is "freedom of speech"? How do we prevent "cruel and unusual punishments"? Which unenumerated rights are the "others retained by the people"?
In the same-sex marriage case, Roberts preached a philosophy for resolving such weighty questions: let the people do it. That approach may sound appealing, but it means due process protects no one from the tyranny of the majority. In Roberts's words, "There is indeed a process due the people on issues of this sort -- the democratic process." The power in a democracy lies with the people, after all, and so why should a handful of government officials with life tenure control anything?
The answer is that our democracy is a constitutional one, in which certain areas are beyond the reach of legislatures. They might enact laws about speech and sentencing and sex, but the final word is for judges. The very reason federal judges are, as Roberts lamented, "unelected and unaccountable" is to ensure their independence, so that they can resist popular will and preserve the promises of the Constitution.
Like so many zealots, Roberts actually harbors a fetish for what he professes to loathe. Only for him, it is out in the open. In the Citizens United and Heller cases, he had no compunction about voting to strike down democratically enacted laws about campaign finance reform and gun control.
So for Roberts the propriety of judicial review of legislation apparently depends on the context. As for same-sex marriage, his hang-up was an inability to accept that although superficial dictionary definitions may be static, the deeper connotations of "liberty" and "equal protection" are not; the notions they evoke today differ from those in the nineteenth century, when the Fourteenth Amendment was ratified. As societies change, so do judgments.
If the Constitution provided for "equal protection of the laws in the fashion accepted in 1868," it would be harder to justify judicial rulings supporting gay rights -- or women's rights, for that matter -- and we would have to take more seriously Thomas Jefferson's concerns about the legitimacy of government by "the dead." Instead, the Constitution speaks in airy axioms, leaving the details to future generations. It won't do to bask in the glory of ringing affirmations of human dignity -- and bask we do, such as in the engraved paraphrasing of the Equal Protection Clause on the front of the Supreme Court building--only to disavow those broad tenets later on the ground that, as Roberts wrote repeatedly in Obergefell, our "history and tradition" dictate a narrow interpretation.
The paradoxical elegance of constitutional principles is that they require supermajorities for ratification yet protect minorities from the masses. Had Americans known when approving the Fourteenth Amendment that one day it would be cited to justify desegregation, they would have balked. Even by 1954, when the first Brown case was decided, it still would have been impossible to enact a school-desegregation law in Congress, not to mention in Arkansas. But the constitutional assurance of equality had been in place for almost a century, and its implications, to a unanimous Supreme Court, were finally clear.
Given the Fourteenth Amendment's racial subtext, perhaps the legal issue in Obergefell was not quite as clear as that in Brown. But to write, as Roberts did, that the five justices in the majority "exceeded their proper bounds," forsaking the appropriate "judicial role" by "[s]tealing this issue from the people," is to misapprehend the position of a judge and the significance of the Constitution. What the majority did was consider the import of an exalted proclamation for the ages and use judgment to decide what it reasonably, if not inevitably, means today. That is the essence of the role of a Supreme Court justice.
A role better suited for Roberts might be that of an umpire. Then again, though he surely could grasp the intricate mechanics of the infield-fly rule, how would he decide whether a ball "could have been as easily handled" by one fielder as another--a decision the rule says is governed by "[t]he umpire's judgment"?
We welcome you to join the celebration, Mr. Chief Justice. Just make sure to use your best judgment and party like it's 2015.