Time, the best of judges

The Supreme Court debates marriage

In 1793, the first administration of George Washington—indeed, the first administration of the United States under its still new Constitution—respectfully asked the country’s Supreme Court for some help and guidance:

Would the learned justices of the court please interpret some of the more uncertain clauses of the country’s treaties affecting its relations with Britain and France? For those two great powers were then locked into a bitter struggle that had turned the Atlantic into a war zone and Europe into an arena of conflict, turmoil and disorder from which it has emerged only intermittently since.

It was a reasonable and polite enough request of the court. To which the court responded with equal deference. John Jay, its chief justice, replied just as reasonably and politely, even reverently, to the Father of His Country—but not positively. The astute chief justice, speaking on behalf of the whole court, explained that President Washington had a cabinet of advisers to give him political guidance in such matters, and that it would exceed the bounds of propriety if the high court were to offer him any.

Rather, the justices explained, with all due modesty, that their function was to decide disputes between litigants who had a legitimate interest in the cases before the court. (Today we call it standing.) And not dive in and tell the government of the United States what policies it should adopt—policies whose legality the court might be called on to judge later. Thus was planted the seed of what would grow into one of the wisest and soundest of approaches to the law. It’s called judicial restraint.

WISE MAN, and judicious chief jurist, that John Jay. The very language which he used in replying to the president and his secretary of state, a Mr. Thomas Jefferson, remains a tribute to Chief Justice Jay’s courtly manner and deep respect for the boundaries the Constitution had set for his branch of government—and for the other two as well. No wonder he was one of the authors of what remains an eloquent piece of statecraft, The Federalist Papers. The reader can almost envision his bowing from the waist and doffing his tri-cornered hat as he responded to the president’s request:

“The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

“We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States.”

If you have borne with us so far, Gentle Reader, allow us to ask you: Can you imagine today’s intercourse between the different branches of our federal government, specifically Congress and the White House, being conducted on so high and courteous a plane? It’s not easy, which says something about how far the Republic has come (down) since the Founding Fathers, who might be summed up as truly the country’s greatest generation.

All of which brings us to that same Supreme Court’s deliberations just last week over a question that might have been inconceivable to the authors of the Federalist Papers, as imaginative and wide-ranging and far-seeing as they were:

Should the Supreme Court of the United States, with one sweeping decision, wipe away all limits, federal and state, to marriage between two consenting homosexuals? If those bewigged luminaries of a statelier time had been told what the court was considering in the Year of Our Lord 2013, would they have believed it? Or just considered it a vulgar joke?

Yet that is the question now before the high court, which has been invited to overrule a California law barring such marriages preparatory to wiping out any distinction in federal law, too, between traditional marriage and the rapidly growing trend to recognize homosexual unions on the same basis.

To do so now would invite the same kind of Forty Years War in the political arena that the court unleashed in 1973 when it declared abortion the law of the land. Apparently under the delusion that it could overrule any and all qualms, moral and legal, state or federal, about the killing of the unborn. Result: The court opened a great divide in the law and in public opinion that has only grown greater since.

That is what comes of declining to leave so volatile a question to the courts and legislatures in every state—those laboratories of democracy, Mr. Justice Brandeis called them. Now there are 50 of those states, and they are still ideally suited to debate and resolve so fundamental an issue.

SOME of the worst and most divisive decisions ever handed down by the Supreme Court of the United States were inspired by just this same sure confidence that the court’s judgment was superior to the conscience of the American people in their various states assembled. Consider the disastrous Dred Scott decision in 1857 that led to the Civil War/War Between the States. Or Roe v. Wade, which continues to agitate the American conscience.

Rather than wait for the law in its deliberate speed to resolve such issues in the goodness of time, the high court is now asked to short-circuit the caseby-case accumulation of precedent known as the common law.

It is good that the court spent hours, even days, debating not so much the essence of the great issue now before it but procedural matters, including who has standing to bring so momentous a question before it.

If the learned justices will continue to exercise judicial restraint, holding their judgment in abeyance till the proper time arrives and the proper circumstances arise, both the court and the country might awaken some day to discover that the best of judges has settled this issue amicably, respectfully, and, in regard to the institution of marriage, even reverentially. For the best of judges is the passage of time.

All that’s needed now is a little judicial restraint. And a willingness to allow so intimate and basic a question to be settled where it has long been lodged—in the laws governing personal relations (like marriage, divorce, and inheritance) in the laws of the several states. And in the federal laws that govern a multitude of programs administered out of Washington, from Social Security to military pensions.

Once time does its work and the fruit of patience is reaped (it is called peace), it is easy to imagine the shade of John Jay smiling benignly upon our generation, thankful that his descendants can still exercise his propriety and courtesy—and his restraint, respect, and even reverence before the law.

Thank you for reading.