"Follow the Law or Resign" - Good Advice for Supreme Court Justices

Washington, DC - Last week, Supreme Court Justice Anthony Kennedy reportedly told law students at Harvard University that government officials should step down and resign if faced with a law that violates their conscience. Although he did not refer specifically to Kim Davis, the message was clear - government officials who disagree with him and his four other colleagues regarding their newly invented and groundless marriage opinion ought to resign. Essentially, he said follow the law or resign. While this might sound good, the real question is "What is the law and what happens when Justices violate their oath to interpret the Constitution?"

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"Unjust laws should be resisted. Religious freedom and conscience should be protected. Justices or judges who disregard the Constitution and impose their own will should resign," said Mat Staver, Founder and Chairman of Liberty Counsel. Justice Kennedy said, "Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law." Constitutional attorney, Harvard Law School graduate, and former Supreme Court Clerk to Justice Scalia, Ed Whelan, hit the nail on the head when he wrote:

"Follow the law or resign" will indeed often be the only choice facing government officials who have religious objections to carrying out their duties. But Kennedy's statement overlooks the very real possibility ... that Kim Davis may have a religious-liberty right under Kentucky law not to issue marriage licenses to same-sex couples (though that right would not extend to barring others in her office from issuing such licenses, at least if the licenses don't bear her name). Kennedy's statement also overlooks the distinct claim ... that, contrary to the myth of judicial supremacy, government officials have an independent duty to apply their best understanding of the Constitution, not the Supreme Court's mistaken understanding of it. Given his career of rulings that barely masquerade his willfulness, Kennedy, in any event, is hardly to be taken seriously as a proponent of the "rule of law." Had he followed his own advice of "follow the law or resign," he would have resigned long ago. Instead, he avails himself of a third option: to misread the Constitution to impose his own policy preferences.

Thomas Jefferson did not believe in judicial supremacy. He would not enforce the Alien and Sedition Acts of 1798 that President John Adams had signed. Jefferson wrote a letter to Abigail Adams saying, "What gives you the idea that the judges have the final authority to be the arbiters of the law? If that were the case we would have a despotic branch." "We must stop fooling ourselves that whatever five people on the Supreme Court say is automatically the rule of law imposed on every American. When the Justices violate their oath and discard the Constitution they are sworn to uphold, they act on their own without constitutional authority. While there are many legal points that are debatable, it is beyond obvious that there is no constitutional authority to impose same-sex marriage by judicial decree," concluded Staver.