I have seen a lot of comments lately about how the Supreme Court has made Obamacare legal or made same sex marriage legal. SCOTUS did *not* make it legal. If fact, there are several precedents for the other branches to ignore the opinion of the court. Andrew Jackson did in the Indian Removal Act (source of the famous, “now let them enforce it” misquote/paraphrase), Lincoln did in the suspension of Habeas Corpus, and FDR was moving to ignore SCOTUS (though the court ultimately upheld him).
If the Legislature or Executive chose to ignore the Court – say in a decision the other branches deem unconstitutional, there is nothing it can do. In general, they honor its opinions, but an obligation is not there. In fact, Congress has the power to remove any Federal judge, include SCOTUS. Likewise, if a President declares an opinion unconstitutional and that he will not comply, the most that can happen is an attempt of Congress to impeach. If enough Representatives disagree with him AND if enough Senators are willing to convict.
At the end of the day, it is the power of the vote, the 1st Amendment and the 2nd Amendment that give any real power to SCOTUS decisions.
One of the things that concerns me most of late, is that SCOTUS continued exceeding of its Constitutional role is going to lead to decisions being ignored. If that does happen, I put the blame on Congress – of both parties – for not using its impeachment power to remove justices.
On the first decision, the majority opinion actually provides reason to ignore their ruling. Justice Roberts noting that the law did live up to Constitutional muster, but deciding to uphold it anyway to avoid “harm” gives the other branches an open invitation to ignore the decision. Essentially, the opinion makes constitutional law subject to convenience.
That’s why Scalia in his dissent was so upset about the destruction of the Court’s credibility. It’s credibility is the only real power it has to enforce its decisions.
As to the second, supporters would have a point if marriage were simply a social contract. As a Christian, my belief is that marriage is the first ordained position by God. Even if you believe in evolution, marriage is the rationalization for the (semi-) permanent mating of a breeding pair. Either way, there are dynamics and nuances to that relationship. A same-sex relationship can imitate it, but not duplicate it. Even if you change the definition of the social contract, Natural Law is not going to respect a court decision.
I suspect that some supporters of SSM understand this already at some level. As the dissenting opinion has noted and the DoJ as already mentioned, this decision will be used against the Church. Based on what we’ve already seen in WA, religious persecution will be coming. I have also seen some activists who are already advocating that the next step is to abolish marriage entirely. Again, they may be able to get rid of the social contract, but they cannot abolish marriage.
My fear is that this will eventually lead to a DOMA Amendment, whether initiated by Congress or by an Article V convention. If through the latter, it will become law, unlike the SCOTUS opinion. The votes are there and the neither Court nor Congress has a say. Regardless my moral opposition to SSM, I don’t want this. Foundational to our government is that issues such as this belong to the individual States.
Addendum (updated 1:30pm):
And silly me, I forgot one important part of the Constitution. The Congress also has the power to regulate SCOTUS.
Article III Section 2
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.