During oral argument on the cases challenging the definition of marriage upheld by the voters in Kentucky, Michigan, Ohio, and Tennessee, Justice Anthony Kennedy remarked, “I don’t know how to count the decimals when he talk about millennia. The definition [of marriage] has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’”
Of course, as everyone now knows, it turned out not to be very difficult after all. All it took was Kennedy persuading Justices Ginsburg, Breyer, Sotomayor, and Kagan to join him in 28 pages of saying “we know better.” Better than the voters of Kentucky, Michigan, Ohio, and Tennessee, and in the majority of other states, which, until this morning, still defined marriage the way it had always been defined. Better than the men who drafted and ratified the Constitution and the 14th Amendment, none of whom would have dreamed that their work would lead to today’s decision. And better than the common wisdom of mankind over, well, millennia.
As Chief Justice Roberts wrote in his dissent, “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?” In his dissent, Justice Scalia charged that Kennedy’s opinion lacked “even a thin veneer of law” and constituted a “judicial Putsch.” And as Justice Alito noted in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
John Adams famously wanted a “government of laws and not of men.” Today’s decision is yet the latest illustration of how far we are from that ideal. Indeed, in practical terms, the Constitution means whatever the swing vote on the Supreme Court says it means. That vote now belongs to Anthony Kennedy. And if you turn on most news programs or read most newspapers today, you will see little criticism of this state of affairs. Instead, you will encounter hosanna after hosanna to Anthony Kennedy and his decision.