Adam J. White, writing for AEI:
To those of us who want to believe that The Federalist is the “true account of the Constitution and of the regime it was calculated to engender,” the early weeks of summer always put our faith to the test.
Every June, the Supreme Court concludes its year’s work by releasing many—maybe all—of the term’s most controversial decisions. That annual spectacle, in which judges and lawyers dominate political headlines for a week or more, often casts no little doubt on Publius’s famous prediction that “the judiciary, from the nature of its functions, will always be the least dangerous” branch of the federal government, exercising “neither force nor will, but merely judgment.” Whatever one thinks of the court’s decisions that term, one cannot deny that the court’s justices, and the lawyers that bring the cases to bar, wield enormous power in American politics.
The justices recognize that power, of course. Two decades ago, Justice Anthony Kennedy looked out his chambers’ windows to the end-of-term commotion on the marble plaza below and remarked to a reporter, “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line”; moments later, he and his colleagues entered the courtroom and issued their decision in Planned Parenthood v. Casey, controversially reaffirming the basic right to abortion first recognized in Roe v. Wade.
This year, Justice Kennedy stood once again at the center of the political maelstrom, writing the court’s opinion striking down the Defense of Marriage Act’s federal definition of marriage. Justice Antonin Scalia dissented from that decision and began his own opinion not with his views on the merits of the specific marriage-rights question, but with a broader denunciation of the court’s outsized role in American life. ...
Whole thing here.