Slate‘s Mark Joseph Stern is upset by Justices Thomas and Alito, who have today issued a warning about a problem that has been obvious to everyone since at least 2015:
The Supreme Court turned away Kim Davis’ case, but Thomas (joined by Alito) wrote a jaw-dropping rant taking direct aim at Obergefell and suggesting that SCOTUS must overturn the right to marriage equality in order to protect free exercise. https://t.co/qES8IZkw0U pic.twitter.com/F0zrYdBaeH
— Mark Joseph Stern (@mjs_DC) October 5, 2020
By “jaw-dropping rant,” Stern means that Thomas and Alito outlined calmly why it creates real issues when the Supreme Court invents rights out of whole cloth, as it did in Obergefell. As I have been since before Obergefell, I remain in favor of gay marriage. But this is by no means the same thing as believing that there is a right to it in the Constitution, or as believing that Justice Kennedy’s majority opinion was anything other than absolute nonsense — and an abuse of power to boot. Obergefell will not be overturned, and, pace Stern, neither Thomas nor Alito suggests that it will be. But they are correct to worry that, as it is written, it will be used to limit the rights that are actually in the Constitution, and they are right to note that this is precisely why all questions that do not have a footing in the document are better resolved by legislatures.
In a follow-up tweet Stern explains that, by issuing their dissent, Thomas and Alito have shown why Democrats must “expand the Court” — by which he means “pack the Court with politicians.” But precisely the opposite is true. As in Roe, the Court lied about the Constitution in Obergefell, and it is now going to have to deal with the distortions that were created by that lie. In effect, Stern is arguing that, in order to maintain this lie, the Court must be staffed by more people who are prepared to lie — a never-ending cycle that, if successful, would destroy the Constitution as it is written. Perhaps that’s the point, after all?