On April 28, 2015, nine unelected lawyers drawn from three elite law schools (Harvard, Yale, and Columbia) listened to 90 minutes of oral argument about same-sex marriage and then retreated behind a wall of red velvet drapes to confer secretly about whether the U.S. Constitution requires that the U.S. Supreme Court impose same-sex marriage on the entire nation.
Consider for a moment the process by which that decision will be reached. When the Court decided to hear the Obergefell consolidated cases from the Sixth Circuit, that decision was reached in secret. The Justices consult only with their colleagues and their law clerks, also drawn from elite law schools.
When a decision in the case is issued, presumably before the end of the current term toward the end of June, the Court will address only those issues argued by parties and the amici curiae that it cares to address. Its opinion will contain only those reasons for its decision that the Court chooses to reveal. The majority decision may be agreed to by as few as five of these nine justices, unaccountable to no one but themselves.
And then, the Court will expect the American people to set aside their individual and collective judgment and passively abide by whatever decision is reached — based on a doctrine found nowhere in the U.S. Constitution — “judicial supremacy.”
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