You can’t tell me you were surprised by the Supreme Court’s decision in United States v. Windsor. I saw it coming ten years ago to the day, the day AJ Anthony Kennedy issued the majority opinion in Lawrence v. Texas.
Forget for a minute — in fact, forget forever — all progressive triumphalism about being “on the right side of history” or “the inevitability of change”. Let there be one defeat or one setback, and suddenly they’re afraid the toothpaste can and will be put back in the tube.
The fact is, I knew eventually we’d see such a decision because progressives were constantly trying to reassure conservatives that the Lawrence decision would never lead to a right to same-sex marriage. It reminded me too much of Ralph Waldo Emerson’s gloss of the private adventurer: “The louder he talked of his honor, the faster we counted our spoons.”
The fact is, I knew eventually we’d see such a decision because progressives are impatient consequentialists: they want to win now, and aren’t fussy about how it’s accomplished. Besides, things that progressives have said in the past lead me to suspect that progressives would prefer a central committee made up of right-thinking people rather than any truly representative form of government.
The Roberts Court is now as close to being that central committee as any non-communist government can have. The problem is not simply that, as in Lawrence, Roe v. Wade and many other cases, the Court’s decision is sloppily reasoned due to being driven by an agenda rather than the case’s merits. Rather, as AJ Antonin Scalia’s dissent points out, Windsor should not have come before the Court at all. In its rush to strike down DOMA, the judiciary stepped out of its jurisdiction.