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"How Progressives Are Playing John Roberts"—Garrett Snedeker in The Federalist
By The James Wilson Institute •
Posted on Jul 7 2015
Weighing in on Chief Justice Roberts' Dissent in Obergefell v. Hodges—and namely why it has enjoyed praise from the left—Garrett Snedeker explains "How Progressives Are Playing John Roberts" in The Federalist. Some excerpts:
"..The chief is invested in a false dichotomy in the marriage cases and in Lochner. What if there were a third way, a substantive argument to be made for what marriage is based not on democratic consensus, but rather from the very nature of marriage as an institution with the primary purpose of binding together mothers, fathers, and potential children, in an association recognized as the most fundamental unit of the polis (or community)?"
"'Just who do we think we are?' asks the chief, halfway through his dissent. I have an answer: you are a judge, so judge! Just because there is lack of consensus on what a reasonable position entails, it does not prevent you from offering a reasoned position. Remember, it is a feature, not a bug, of the separation of powers that if you reach a decision at odds with the other branches, no one branch has a final say on a law’s constitutionality. Those other two branches have just as much a say, if they decide to summon the willpower to address the issue."
"Conservatives need to realize that 'substantive due process' simply means judges will not sit back, ready to stamp the label of legitimacy on any measure passed with the support of the majority and trappings of legal procedure, that they will in fact act as judges by testing in a demanding way the rationale or justification for the law. The judges, tuned to that kind of discipline, may discover, as Brown suggests, that there’s something sacred about using reason in a strenuous way. At that point, their judgments will make far more sense to ordinary folks than the invocations of 'bare textualism.'"
Read the whole piece here.