Judicial Will or Legal Judgment? (Obergefell v. Hodges) PDF

Wednesday, 4 December 2024 16:38 Judicial Will or Legal Judgment? A Critical Analysis Justice Roberts’ Dissent in Obergefell v. Hodges(57 Introduction The Supreme Court’s landmark decision in Obergefell v. Hodges (2015) recognized same-sex right under the Fourteenth Amendment, marking a tran...

Wednesday, 4 December 2024 16:38 Judicial Will or Legal Judgment? A Critical Analysis Justice Roberts’ Dissent in Obergefell v. Hodges(57 Introduction The Supreme Court’s landmark decision in Obergefell v. Hodges (2015) recognized same-sex right under the Fourteenth Amendment, marking a transformative moment in American con Justice Kennedy’s majority opinion celebrated the decision as an affirmation of dignity, liber Justice Roberts, in a strongly worded dissent, accused the Court of overstepping its bounds. decision was “an act of will, not legal judgment” and lacked any basis in the Constitution or p reflects broader debates about judicial activism, the evolving interpretation of constitutiona between judicial and democratic authority. This essay critically examines Roberts’ dissent, analyzing whether his concerns about judicial governance, and institutional legitimacy are justified. While his arguments raise important q judiciary’s role in a democratic society, they fail to account for the Constitution’s aspirationa necessity of judicial intervention to safeguard minority rights. By contextualizing Roberts’ dis theory and case law, this essay argues that the majority’s decision in Obergefell aligns with a understanding of liberty and equality. 1. The Context of Obergefell v. Hodges The petitioners in Obergefell challenged state bans on same-sex marriage, asserting that suc Fourteenth Amendment’s Due Process and Equal Protection Clauses. The majority opinion, a emphasized that marriage is a fundamental right essential to individual dignity and autonom same-sex couples, Kennedy argued, demeaned their relationships and perpetuated inequalit Chief Justice Roberts dissented, joined by Justices Scalia, Thomas, and Alito, contending that legislature rather than a court. His dissent was rooted in three primary concerns: 1. The absence of a constitutional basis for the recognition of same-sex marriage. 2. The Court’s overreach into matters best left to the democratic process. 3. The potential damage to the Court’s institutional legitimacy. These arguments form the basis of his critique and the focal points for this essay’s analysis. 2. Lack of Constitutional Basis Roberts’ central argument was that the Constitution does not explicitly mention marriage, le and that the majority’s recognition of such a right was unfounded. He invoked the standard Glucksberg (1997), which held that substantive due process rights must be “deeply rooted in tradition.” According to Roberts, same-sex marriage failed this test, making the majority’s de s of Chief 76 U.S. 644) x marriage as a constitutional nstitutional jurisprudence. rty, and equality, while Chief Roberts argued that the precedent. This critique al rights, and the balance l overreach, democratic questions about the al principles and the ssent within constitutional a principled and evolving ch laws violated the authored by Justice Kennedy, my. Denying this right to ty. t the majority had acted as a et alone same-sex marriage, set in Washington v. n this Nation’s history and ecision an act of judicial 2. Lack of Constitutional Basis Roberts’ central argument was that the Constitution does not explicitly mention marriage, le and that the majority’s recognition of such a right was unfounded. He invoked the standard Glucksberg (1997), which held that substantive due process rights must be “deeply rooted in tradition.” According to Roberts, same-sex marriage failed this test, making the majority’s de creativity rather than constitutional interpretation. However, Roberts’ reliance on Glucksberg is problematic for several reasons. First, the histor in Glucksberg has not been consistently applied in substantive due process cases. In Loving v instance, the Court invalidated bans on interracial marriage despite the historical prevalence Kennedy’s majority opinion in Obergefell builds on this precedent, arguing that fundamental evolve to reflect contemporary understandings of liberty and equality. Moreover, the Constitution’s broad language in provisions like the Due Process and Equal Pr that it was intended to accommodate changing societal values. As Justice Brennan observed “aspirational principles” that guide the judiciary in addressing new challenges. Applying this of same-sex marriage as a fundamental right is consistent with the Constitution’s underlying and autonomy. 3. Judicial Activism and the Role of the Court Roberts accused the majority of engaging in judicial activism, arguing that the Court had usu by resolving a contentious social issue through judicial fiat. He stated: “This Court is not a legislature. Whether same-sex marriage is a good idea should be — Obergefell v. Hodges, 576 U.S. 644, 711 (2015) (Roberts, C.J., dissenting). In Roberts’ view, the democratic process—not the judiciary—was the appropriate forum for marriage policy. While Roberts’ concerns about judicial restraint are valid in principle, they fail to account for protecting minority rights when democratic processes fall short. As Alexander Bickel argued Branch, the judiciary functions as a countermajoritarian institution, addressing injustices tha perpetuate. Landmark decisions like Brown v. Board of Education (1954) and Roe v. Wade (1 judicial intervention is often necessary to uphold constitutional principles in the face of entre opposition. In the case of same-sex marriage, legislative action had proven uneven and inadequate, with that perpetuated discrimination. By recognizing the right to marry as fundamental, the Cour duty to ensure equal protection and liberty for all individuals, irrespective of public opinion. 4. Institutional Legitimacy Roberts expressed concern that the majority’s decision risked undermining the Court’s legiti a political body rather than a neutral arbiter of the law. He warned that decisions perceived erode public trust and politicize the judiciary: “The legitimacy of this Court ultimately rests on its reputation for issuing principled d law.” — Obergefell v. Hodges, 576 U.S. 644, 732 (2015) (Roberts, C.J., dissenting). While institutional legitimacy is a valid concern, it is not necessarily compromised by decisio equality. The Court’s ruling in Brown, for example, faced significant public backlash but ultim judiciary’s role as a protector of civil rights. Similarly, Obergefell aligns the Court with broade inclusivity and equality, enhancing its credibility as an institution committed to justice. Furthermore, Roberts’ emphasis on legitimacy overlooks the fact that inaction in the face of et alone same-sex marriage, set in Washington v. n this Nation’s history and ecision an act of judicial rical approach emphasized v. Virginia (1967), for e of such restrictions. Justice l rights are not static but rotection Clauses suggests d, the Constitution embodies framework, the recognition g commitments to dignity urped the role of legislatures e of no concern to us.” r deciding questions of r the judiciary’s role in in The Least Dangerous at majoritarian politics may 1973) demonstrate that enched social and political h many states enacting bans rt fulfilled its constitutional imacy by making it appear as as judicial overreach could decisions grounded in the. ons that advance justice and mately solidified the er societal shifts toward f discrimination can also  law.” — Obergefell v. Hodges, 576 U.S. 644, 732 (2015) (Roberts, C.J., dissenting). While institutional legitimacy is a valid concern, it is not necessarily compromised by decisio equality. The Court’s ruling in Brown, for example, faced significant public backlash but ultim judiciary’s role as a protector of civil rights. Similarly, Obergefell aligns the Court with broade inclusivity and equality, enhancing its credibility as an institution committed to justice. Furthermore, Roberts’ emphasis on legitimacy overlooks the fact that inaction in the face of harm the Court’s reputation. As Justice Kennedy observed in Obergefell: “The nature of injustice is that we may not always see it in our own times.” — O U.S. 644, 664 (2015) (Kennedy, J., majority opinion). The majority’s decision reflects the Court’s willingness to confront systemic inequities and af couples. 5. The Evolutionary Nature of Constitutional Rights Roberts’ originalist approach to constitutional interpretation contrasts sharply with the living framework adopted by the majority. Originalism emphasizes the Constitution’s historical me discretion to avoid overreach. While this approach provides a measure of stability, it risks pe that exclude marginalized groups. Living constitutionalism, by contrast, recognizes that the Constitution’s principles must evolv challenges. Justice Kennedy’s majority opinion in Obergefell exemplifies this perspective, ass equality must be interpreted expansively to reflect societal progress. This approach aligns w Connecticut (1965), which recognized the right to privacy, and Lawrence v. Texas (2003), whi laws. By adopting a living constitutionalist framework, the majority in Obergefell reaffirmed the ju that constitutional guarantees remain meaningful in a changing world. Roberts’ critique, whi about judicial restraint, fails to acknowledge the necessity of this dynamic approach in addre 6. Broader Implications of Obergefell The implications of Obergefell extend beyond the recognition of same-sex marriage. The dec judiciary’s role in advancing liberty and equality, particularly for marginalized communities. W highlights important questions about the limits of judicial power, it ultimately underestimate Court’s role in safeguarding fundamental rights. Moreover, Obergefell exemplifies the tension between democratic governance and judicial p emphasizes the importance of leaving social issues to legislatures, this approach overlooks th often exclude minority voices from the democratic process. By intervening to protect same-s the Court fulfilled its constitutional mandate to uphold justice and equality. Conclusion Chief Justice Roberts’ dissent in Obergefell v. Hodges reflects his commitment to judicial rest assertion that the majority’s decision was “an act of will, not legal judgment” encapsulates h overreach and the erosion of institutional legitimacy. However, as this essay has argued, the with a principled and evolving understanding of constitutional rights. By recognizing same-se fundamental right, the Court reaffirmed its role as a protector of liberty and equality, advanc aspirational principles in the face of societal change. While Roberts’ critique raises valid ques judicial power, it ultimately fails to account for the judiciary’s indispensable role in addressin and safeguarding fundamental rights.. ons that advance justice and mately solidified the er societal shifts toward f discrimination can also Obergefell v. Hodges, 576 ffirm the dignity of same-sex g constitutionalist eaning, limiting judicial erpetuating outdated norms ve to address contemporary serting that liberty and with cases like Griswold v. ich invalidated anti-sodomy udiciary’s role in ensuring ile grounded in concerns essing modern injustices. cision underscores the While Roberts’ dissent es the importance of the protection. While Roberts he systemic barriers that sex couples’ right to marry, traint and originalism. His his concern about judicial e majority’s decision aligns ex marriage as a cing the Constitution’s stions about the limits of ng systemic discrimination with a principled and evolving understanding of constitutional rights. By recognizing same-se fundamental right, the Court reaffirmed its role as a protector of liberty and equality, advanc aspirational principles in the face of societal change. While Roberts’ critique raises valid ques judicial power, it ultimately fails to account for the judiciary’s indispensable role in addressin and safeguarding fundamental rights. References Obergefell v. Hodges, 576 U.S. 644 (2015). Washington v. Glucksberg, 521 U.S. 702 (1997). Loving v. Virginia, 388 U.S. 1 (1967). Brown v. Board of Education, 347 U.S. 483 (1954). Griswold v. Connecticut, 381 U.S. 479 (1965). Lawrence v. Texas, 539 U.S. 558 (2003). Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Pol 1962. Brennan Jr., William J. "The Constitution of the United States: Contemporary Ratificati 27, no. 3, 1985, pp. 433–448. ex marriage as a cing the Constitution’s stions about the limits of ng systemic discrimination litics. Yale University Press, ion." Texas Law Review, vol.