Here is the testimony I have submitted in connection with today’s Senate hearing titled “With Prejudice: Supreme Court Activism and Possible Solutions.” (Live video of the hearing, which begins at 1:30, should be available here.)
From the overview/summary part of my testimony:
The Supreme Court’s 5-4 ruling last month inventing a supposed federal constitutional right to marry a person of the same sex is brazenly lawless. In the flagrancy and magnitude of its errors in overriding, and cutting short, the democratic processes, Obergefell v. Hodges is rivaled in Supreme Court history only by Dred Scott v. Sandford (1857) and Roe v. Wade (1973).
The Court’s ruling in Obergefell shows, as Justice Alito observes in his dissent, that “decades of attempts to restrain [the] Court’s abuse of its authority have failed” and that there is a “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” For the five justices in the Obergefell majority, “the only real limit” on what they or their ideological successors might do in other cases in the future “is their own sense of what those with political power and cultural influence are willing to tolerate.”
Some of the ordinary tools are available and necessary to respond to some of the damage that Obergefell threatens. In particular, there is an urgent need to protect churches and religious schools and charities from being severely penalized and driven out of operation merely because they adhere to the same understanding of marriage that President Obama professed to hold when he ran for president. It is essential that Congress enact specific religious-liberty protections along the lines of the First Amendment Defense Act that is now pending in both houses of Congress. It is likewise essential that the states enact similar legislation.
Another ordinary avenue that remains available for working to thwart the Court’s unconstitutional excesses is the election in 2016 of a president who will aim to appoint sound justices to the Court.
But the Court’s extraordinary abuses also call for consideration of extraordinary responses. Possible responses include a range of constitutional amendments—for example, to amend the amendment process itself, to override specific rulings, to provide a means besides impeachment for removing bad justices, or to impose term limits on Supreme Court justices. It’s worth emphasizing that voices on the Left have advocated some of these approaches.
None of these constitutional amendments, of course, would be easy to adopt, and careful consideration of their advantages and disadvantages is required. Further, if progress is going to be made, prevailing confusions about constitutional interpretation—especially those embedded in the “living Constitution” approach to judicial decision-making and in the myth of judicial supremacy—need to be dispelled. The challenge is great. But in the present state of affairs, the difficulty of the challenge is a poor excuse for inaction.