Occasionally I give talks to groups about the problem of judicial supremacy—the unconstitutional doctrine that the Judicial Branch has unique power to interpret the Constitution and can overrule the other two branches and overrule the states without question.
I've written about here, but I'm not the only one. Here's another piece.
Anyway, I gave a talk on this a few days ago, and some folks wanted a link to a particular part of the presentation.
Because this is a hobby horse of mine, my eyes were riveted to some of Justice Scalia's last writings—specifically, his dissent in the Obergefell case (same-sex marriage). The point of this language has nothing to do with same-sex marriage—it has to do with whether courts actually have us much power under the Constitution as we have allowed them to assert.
In my opinion, Scalia left us a coded hint in his dissent on the gay marriage decision. It concludes:
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
What I think Scalia is suggesting is that the Founders purposely designed the Court without the power to enforce its opinions, and that states and the other two branches of the federal government actually have more power to simply ignore SCOTUS decisions than they know they have.
What, for instance, would happen if a state simply decided to ignore a controversial SCOTUS case? What would happen if a president simply ignored a nationwide injunction issued against the Exective Branch by some mid-level judge in Washington State? What, exactly, would happen?