Today, amid the many circuit appointments the President has made and Justice Gorsuch taking his position on the Supreme Court, there is an opportunity for Constitutionalism to rise again. There will likely be another Supreme Court vacancy within the next couple years and Chief Justice John Roberts will be tasked with leading the new court forward. My hope is Alexander Hamilton’s Federalist 78 will experience a revival of sorts when considering the next round of monumental cases.

In the modern age, one of the greatest proponents of the judicial restraint articulated in Federalist 78 was Robert Bork. His connection to Constitutionalism was discussed in a prior post. However, there have been traces of his interpretation style in some of the opinions composed by the Chief Justice.

An example I will point to today is his dissenting opinion in Obergefell, the case on the Constitutionality of the right to same-sex marriage. While this post will not provide commentary debating the outcome of the case, it will look to the legal reasoning the Chief Justice relied upon in his dissent. The reasoning is something Constitutionalists should consider as a framework going forward in the approach to major decisions in the coming years. Opportunities will arise and this reasoning is a necessary foundation if we are to succeed in bringing forth a renewed sense of Constitutionalism to the forefront of the Supreme Court and society. Hamiltonian and Borkean elements can be found in its text.

In Chief Justice Roberts’ dissent he states:

“But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.  Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.'” [1]

Later, he adds:

“The majority’s decision is an act of will, not legal judgment. . . The majority                 expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly  relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’  As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution. . “.[2]

This interpretation reflects one of Bork’s central fears and assessment of the modern age in his book, The Tempting of America:

“Courts not only share the legislative power of Congress and the state legislatures, in violation both of the separation of powers and of federalist, but assume a legislative power that is actually superior to that of any  legislature.”[3]

Throughout the book, Bork directed much of his criticism towards Griswold[4] and Roe[5] as examples where valid state legislative actions were overturned by an activist judiciary.

In his dissent, the Chief Justice recognizes the limits of the judiciary and reflects Borkean sentiment. The judiciary is not a legislature, tasked with making rulings consistent with societal views and public pressures. Hamilton’s views in Federalist 78 considered this branch of government isolated and distinct. The judiciary is defined as a branch of government with adjudicatory and judgment power.

State legislatures and Congress are tasked with authority to consider the societal views of the modern day and ever evolving nation in crafting legislation for the state or the nation. The judiciary has not been granted such a power. The Supreme Court is bound by the Constitution and its role is defined to evaluate the matters before it through that lens. When the Supreme Court drifts outside its designated task, the nation suffers and many of the issues that divide people to this day came as a result of the Supreme Court inserting itself into questions best left for the legislative branch. The legislative branch answers to democracy with regional and national interests. The Supreme Court answers to the Constitution alone.

The American people would gain a deeper appreciation for the Constitution and the different branches of government if roles of these branches were not confused with each other. Under the guidance of the Chief Justice, the Supreme Court can return to these fundamentals and provide a sense of stability to Constitutional interpretation. My hope is the high court moves in this direction with the addition of Justice Gorsuch and reliable fellow Constitutionalists Clarence Thomas and Samuel Alito. However, it is the influence of the Chief that will ultimately bring this to fruition. If the reasoning in the Obergefell dissent is any indication, I am hopeful for the future. All it takes is the Hamiltonian and Borkean key to be turned.

[1] Obergefell v Hodges, 135 S Ct 2584, 2611, 192 L Ed 2d 609 (2015). The Supreme Court granted the Constitutional right to same-sex marriage and removed the issue from state definition.

[2] Id.

[3]  Robert Bork, The tempting of America: The Political Seduction of the Law (1991).

[4] Griswold v. Connecticut 381 U.S. 479 (1965).  A long-standing Connecticut statute banning contraception was invalidated by Supreme Court”

[5] Roe v. Wade 410 U.S. 113 (1973). Long-standing state statutes banning abortions were invalidated by the Supreme Court.