Recent Supreme Court decisions have caused some to question the legitimacy of the court and even the viability of our democratic republic. We hear of demands to “pack,” reform or even abolish the court — or to impeach its members — to guarantee certain outcomes and protect certain “established rights.” However, such concerns manifest a misunderstanding of our constitutional framework and the limited role of the court.
Historically, as intended by our founders, the judiciary is the weakest of the three branches of government. The Supreme Court has the power neither to make law nor to enforce law. Its only power is to interpret and declare the law — to act as arbiter between the other branches of government.
Unlike the two political branches of government, which appoint and confirm members of the court, judges have life tenure and irreducible salary to insulate them from political and social pressures when issuing decisions.
The founders never intended that the makeup of the court could be manipulated to effectuate current public policy. While stare decisis (adherence to precedent) is important, it is not absolute, and shifting court membership over time results in overruling prior decisions deemed in error, such as with slavery, segregation, homosexuality, saluting the flag, gay marriage and abortion.
In the recent Dobbs case, upholding a state statute limiting abortion, the Supreme Court overruled Roe v. Wade on the basis that it was wrongly decided — as many legal experts had argued since it was issued in 1973.
Specifically, Dobbs held that there is no substantive due process or privacy right to abortion in the 14th Amendment. Abortion advocates decry the sudden abolition of a right established for 50 years, but they fail to acknowledge that Roe suddenly altered the widespread prohibition of abortion that had existed for hundreds of years. Moreover, Roe altered our concepts of ordered liberty by shifting the debate and resolution of public policy issues from state legislatures to federal courtrooms. Dobbs merely restores that proper order — leaving the issue for resolution by the people through their elected state representatives.
Ultimate resolution of the abortion issue is open to debate.
One side argues the importance of “reproductive freedom,” while others see abortion as an injury to the unborn — an affront to a God who gives life and to a society that values life. Abortion advocates seek to override the Dobbs decision with an act of Congress codifying Roe. However, Dobbs was clear about remanding the issue to the states and the people, through their elected representatives — where it stood prior to Roe. Accordingly, Congress has no constitutional jurisdiction on the issue.
Gay marriage advocates criticize Dobbs as a precursor to possible overruling of Obergefell v. Hodges, which found a substantive due process right to gay marriage under the 14th Amendment.
That outcome would also be justified, as Obergefell did for gay marriage what Roe did for abortion — cut off public debate in legislative halls and judicially forced the states to abandon a position held sacrosanct for hundreds of years. While there may be a fundamental right to a same-sex relationship, there is no such right to the statutory label of “marriage.”
The federal Respect for Marriage Act, regrettably supported by all four Utah congressmen, is intended to preempt court action by codifying Obergefell. However, as with abortion, Congress has no jurisdiction over the definition of marriage — that is a power reserved by the Constitution and long-standing legal tradition to the states.
Proponents of the federal marriage act claim it is necessary to ensure full faith and credit for gay marriages performed where they are legal. However, Article IV, Section 1 of the Constitution already does that. The real purpose of the act can only be to impose a federal standard for the definition of marriage — which is beyond the power of Congress to do.
State sovereignty over matters of family, life and health is rooted in the Constitution. Congress has only the powers expressly delegated to it by the people in Article I, Section 8 of the Constitution — powers to maintain the security and prosperity of the nation. All other powers are reserved by the 10th Amendment to the states and the people. James Madison explained in Federalist 45: “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.” Those powers exclusive to the states certainly include the definition and regulation of abortion and marriage.
Rep. Merrill Nelson, R-Grantsville, is a member of the Utah House of Representatives and has served in the Utah House for 12 years (1990-92 and 2012-22).