Does every Supreme Court ruling deserve our total and unhesitating support? No. That, at least, was the view of one of our greatest citizens and statesmen, Abraham Lincoln.
I thought of this when I read about the rather weak–it seemed to me–reactions of leading Republicans to U.S. v. Windsor, in which the Supreme Court presumed to tell the citizens of the United States that they have no right to define marriage as they think best. In general, these Republican leaders talked as if they felt disappointed in what the Court did, but at the same time conceded that it had the power to do it. Many of them said something like: now the battle over marriage will continue in the states. But that reaction implicitly concedes that the Court has a right to invent new constitutional meanings that were utterly unknown prior to the present generation, which in turn preemptively concedes its right to impose same-sex marriage on the states, once it gets around to doing so.
Memo to Republican leaders: tactical retreats are sometimes necessary, but if they are your default strategy, you will eventually find that you have retreated off of every possible battlefield, that you have conceded everything and lost.
A much more intelligent and manly example of how to respond to Supreme Court overreach is offered by Lincoln’s response to the Dred Scott decision, and I have tried to sketch it out in this article at Public Discourse. Needless to say, the best parts come from Lincoln himself, including this:
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.