James Madison proffered that when one branch of government exceeds the metes and bounds of its authority and sanctions something repugnant to a large portion of society it weakens the bands that holds that society together. I suggest that America is currently suffering that fate.
In the last half century the Supreme Court has overstepped its constitutional authority and has sanctioned scores of unlegislated statutes that have helped create a great division in our country. Recently I read an opinion piece by three lawyers that underscored how significantly this breach of power can harm our country.
Regarding the Obergefell v. Hodges decision, these constitutional lawyers said: “But this Court (SCOTUS) is not a legislature. Whether same-sex marriage is a good idea should be of no concern .... Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”
They further stated:”But this Court is not a legislature. The majority’s decision (Obergefell) is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”
Additionally they wrote: “As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
Further: “The Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... 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 indeed is what Madison foresaw. A significant portion of our country see SCOTUS, as it currently exists, as a threat to our very democracy. These three constitutional lawyers agree. I just took excerpts from their written opinion, but you can read the entire opinion yourself. You can google it under Obergefell v. Hodges: Chief Justice Roberts, with whom Justice Scalia and Justice Thomas joined.