My wife's alarm clock, lately, has been coming on to some weird, (apparently) right-wing talk show of know-nothings. I say apparently right-wing because I have only heard them in minute-or-two chunks. Thank goodness. I really should find out who the idiots are (I'm pretty sure they're on because my wife's clock's tuning got jostled; it isn't the sort of thing she supports).
Today was them railing on the Supreme Court denying cert for the several appeals from the various circuits trying to deny gay marriage. Their complaint was that the Supreme Court was shirking its duty for not weighing in because a) the founders intended for them to have a say and b) unaccountable, unelected judges were coming to this undemocratic conclusion.
These are both pretty risible arguments, and we'll start with the first. The founders (which is to say, the writers of the Constitution) said nothing about the Supreme Court ruling on the Constitutionality of laws. This was a court-arrogated (rightly, IMO) assumption of power that came out of the case Marbury v Madison. I haven't looked at this since fourth grade, but what I remember was that a fairly terrible law was passed by Congress, and that the executive branch had no intention of enforcing it. Deciding in favor of either party to the suit would have effectively neutered the judiciary, because the judiciary had no power to enforce its opinion and the executive branch wasn't planning on upholding its duties.
But Chief Justice John Marshall found the way out: he declared the law unconstitutional. Nobody could gainsay him, and Congress and the Executive Branch were both left fuming. And it set a precedent that the judiciary would not be able to be ignored. All well and good.
It certainly doesn't require the Supreme Court to have anything to say on a law.
The second argument is even more absurd, and he wanted HIS unelected, unaccountable judges to overrule the ones he didn't like. The talk show host wasn't calling for elected judges to overturn the unelected ones.
He also made some fairly silly comments about activist judges, which is really funny because he was calling for the Supreme Court majority to BE activists. If there had been a split in the lower courts, maybe that wouldn't be the case, but every lower court that had heard these cases had agreed. The one exception was when a panel of the Fourth (I think) said discrimination was fine, and the rest of the circuit actually vacated that opinion (a very unusual step; I'd never heard of it happening before. They didn't even wait for an en banc appeal). Once that happened, all the various Circuits were in agreement that outlawing gay marriage was, on its face, discriminatory.
And at that point, there was no need for the Supremes to step in. Granted, this court is very willing to step into things to change laws the way they want (witness the case history behind the final decision of Citizens United for the most obvious example), but there was no obligation there.
Finally, a side note. Part of the ranting touched on the rather spurious logic behind Roberts' decision on Obamacare. I agree with the host that that was pretty ridiculous reasoning. But his implication (he might have even said it outright) was that Obamacare SHOULD have been overturned.
What he might want to think about before asserting something like that is that overturning Obamacare would have invalidated Medicare/Medicaid. The court didn't want to do that, so they rather tied themselves in knots that I have no interest in defending. But imagine Medicare being declared unconstitutional, almost fifty years after the fact. That would've been mighty ugly.
Anyway, we should ignore these blowhards and celebrate that gays can now get married in much of the country, and any court challenge to their ability to do that is likely to be rejected out of hand. Let's hear it for another nail holding up the wall discriminating against people who are different. Acceptance might lead to further challenges, but there's no question that it's the way forward.