From a Facebook post by Duff McKee, a former 4th district judge in Idaho.
A court decision of significance will invariably disappoint some and delight others. Usually, the more delighted the winner is, the more upset the loser becomes. It is not uncommon for losers to blame the judge.
The marriage equality decision by our highest court demonstrates the phenomena. The teapots and extreme evangelicals are noisily rising up to complain, as expected. One theme of their rumble is that it’s all the courts’ fault; the courts have gone off on excursions of their own, changing laws at will, ignoring the will of people, tearing up valid legislation, etc. The noise is, by and large, hyperbolic, extreme, and historically wrong, but we have come to expect this from the more radical divisions within our society. It’s within the penumbra of tolerable free speech.
But there is also a line of critical remarks about the courts swirling around the marriage equality decision that is different from the normal rumble of losers’ gripes.
These are the comments to the effect that one should just ignore judicial decisions that one disagrees with, or that those in power are not obligated to follow a decision that they choose not to, or that states remain able to enact their own laws contrary to rulings of the high court. These remarks are not just disturbing, they are appalling – because these remarks are coming from men who are currently seeking to become President of the United States. It makes one shudder.
The inspired magnificence of our Constitution is in the balance it imposes upon the government. Integral to this balance is the existence of an independent judiciary with the right and the duty to examine the acts of government to ensure the actions are within the boundaries of the Constitution, properly express the will of the majority, and do not trample upon the rights of the minority. While we believe the will of the majority should, and does, overwhelmingly guide our affairs in almost every facet of our lives, we believe with equal fervor that the government should not trample upon the rights of the minority.
The guardian of all these concerns throughout history has been, and is, judicial review by an independent judiciary. This is the essence that has been part of our heritage since the very earliest days of our government. Marbury v Madison, decided in 1803, was not a startling new proposition, but was merely the first case of judicial review to reach the high court.
To complain that the high court in the marriage equality decision has just recently usurped unto itself the power to interfere, and that this somehow takes away from the inherent authority of the Congress or of the several states, is to display a fundamental lack of understanding of how our government works, but it is a just complaint. To even suggest that it would be appropriate for those in power to simply ignore such a decision of the high court is not only dangerously stupid, it is plain treachery.