# Could the refusal of Garland's nomination dangerously politicize the Supreme Court? **URL:** \ **Category:** Great Debates\ **Created:** [April 3, 2016, 3:09pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083 "2016-04-03T15:09:01Z")\ **Posts on this page:** 20\ **Page:** 9
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [April 13, 2016, 4:09pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/161 "2016-04-13T16:09:38Z")
> [@Shodan](#): > > No, I haven’t said anything of the sort. It is judicial activism when the courts make up new laws or new rights that don’t previously exist. That is not their role. > > Regards, > Shodan But there are disagreements on what rights exist or existed already in pre-existing laws. Your interpretation is one way to look at it, but not the only way, especially considering the language of the 9th amendment, directly implying that there are other rights in existence in addition to those specifically laid out in the Constitution. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 13, 2016, 4:26pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/162 "2016-04-13T16:26:16Z")
> [@Algher](#): > > You forget the 9th. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Ninth is an aid to construction, not a source of rights. > [@](#): > > The Supreme Court can certainly recognize other rights of the people, that would be part of their role in interpreting the 9th Amendment. The 9th exists (along with the other 9 amendments of the BOR) BECAUSE many Founders did not want to be held to a single list of rights, they instead wanted a system of government that expressly limited the powers of the government. And the Tenth Amendment furthers the goal of limiting the powers of government only and solely to those granted it by the Constititution. The power of adding to, subtracting from, or altering, the list of rights belongs to the legislature (insofar as a right is established by law) or to the states or the people. Since the Constitution does not grant that right to the Supreme Court, the Supreme Court may not do so. > [@Bone](#): > > If you think this is a rebuttal, you are wrong. John has it correct. There are many things that are not mandatory that are permissible. Mostly a nitpick, but if the Constitution says neither “may” or “shall”, then the power to do that belongs to the states or the people. > [@iiandyiii](#): > > But there are disagreements on what rights exist or existed already in pre-existing laws. Then by all means quote the **law** that defines marriage as the union of two men or two women. Regards, Shodan ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [April 13, 2016, 4:28pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/163 "2016-04-13T16:28:40Z")
> [@Shodan](#): > > Then by all means quote the **law** that defines marriage as the union of two men or two women. I did (in terms of what law includes that right) – the 5th and 14th Amendments, according to the majority opinion for Obergefell. You might disagree with their interpretation of those amendments, but according to them, the 5th and 14th Amendments implicitly include that right. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 13, 2016, 4:38pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/164 "2016-04-13T16:38:21Z")
> [@Shodan](#): > > Mostly a nitpick, but if the Constitution says neither “may” or “shall”, then the power to do that belongs to the states or the people. Ok that’s a reasonable position to take. It is however, different than what you said prior. This part right here: > [@Shodan](#): > > That’s how it works - for the federal government, whatever is not mandatory is forbidden. That is a false statement. Do you agree? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 13, 2016, 5:04pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/165 "2016-04-13T17:04:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Of course not. But the common law has always allowed the sovereign to determine what weapons a person may use to lawfully defend himself. Of course. However, to have a right of self-defense, taken along with the 1688 English Bill of Rights, and 2nd amendment where common people were expected to have commonly used weapons available at the ready, the sovereign’s power to determine what types of weapons people may possess does not logically extend to “no weapons at all.” So it is now a legitimate exercise of judicial power to look at the particular facts of the case (a complete ban on all handguns) and determine, using historical and well-grounded law and not just making stuff up about dignity, if a sovereign can go so far as to ban a very basic weapon commonly used by millions of people for self-defense. I believe that it is clear that Scalia used well grounded precedent to conclude that it could not. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 13, 2016, 5:18pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/166 "2016-04-13T17:18:06Z")
> [@Bone](#): > > That is a false statement. Do you agree? Yes. And it makes no difference to my point. Do you agree? Regards, Shodan ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 13, 2016, 5:33pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/167 "2016-04-13T17:33:30Z")
> [@Shodan](#): > > Yes. > > And it makes no difference to my point. Do you agree? Yes. Though it may influence readers as to your presentation of your understanding of constitutional jurisprudence were it not simply an unintentional misstatement which was my assumption. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 13, 2016, 8:29pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/168 "2016-04-13T20:29:59Z")
> [@Shodan](#): > > No, I haven’t said anything of the sort. It is judicial activism when the courts make up new laws or new rights that don’t previously exist. That is not their role. . . . How do you know a given right “doesn’t exit,” given that the Ninth Amendment provides that they might? Can you demonstrate that the right to marriage is not provided for in the Ninth? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 13, 2016, 9:00pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/169 "2016-04-13T21:00:04Z")
The states or the people decide what rights they want the federal government to protect. That’s called “enumeration”. Regards, Shodan ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [April 13, 2016, 9:15pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/170 "2016-04-13T21:15:23Z")
> [@iiandyiiii](#): > > I did (in terms of what law includes that right) – the 5th and 14th Amendments, according to the majority opinion for Obergefell. You might disagree with their interpretation of those amendments, but according to them, the 5th and 14th Amendments implicitly include that right. I don’t see where the 5th Amendment is mentioned in the majority opinion. Perhaps you can point it out? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 13, 2016, 10:06pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/171 "2016-04-13T22:06:21Z")
> [@Shodan](#): > > Because the law defines marriage as the union of one man and one woman. The _law_? Cite? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 13, 2016, 10:08pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/172 "2016-04-13T22:08:56Z")
> [@Shodan](#): > > I bolded **law** for a reason. Please cite the **law** whose equal protection was being denied to gay couples. > > Regards, > Shodan [There are 1138 of them.](https://en.wikipedia.org/wiki/Rights_and_responsibilities_of_marriages_in_the_United_States) Were you really not paying any attention at all when the debate was still going on? > [@Shodan](#): > > SSM is not like interracial marriage. What is the distinction, either legally or morally? ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [April 13, 2016, 10:09pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/173 "2016-04-13T22:09:08Z")
> [@D\_Anconia](#): > > I don’t see where the 5th Amendment is mentioned in the majority opinion. Perhaps you can point it out? I looked again and I could only find reference to the 14th, so I may have made a mistake (since the Due Process Clause, which is referenced, is almost identical in both amendments). ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 13, 2016, 10:17pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/174 "2016-04-13T22:17:12Z")
Other SSM rulings have included it, usually as a supporting argument. But the Massachusetts ruling in \*Goodridge \*made due process the primary argument. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 14, 2016, 1:12am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/175 "2016-04-14T01:12:26Z")
> [@Shodan](#): > > > [@](#): > > > > It has already been shown to you, multiple times, that marriage was never defined under the law to be opposite-sex only. > > I don’t see any cite such as you describe. That’s probably because there aren’t any. His claim was not that you have been provided legal citations, but that the historical evidence had been presented. You are right that “there aren’t any” because the law never established either that opposite sex unions were the norm or that same sex unions were prohibited. Rather, the presumption, based on societal understanding and not enshrined in law, presumed opposite sex marriage was the norm. Your persistent claims that marriage was defined (in law) as only opposite sex unions is wrong and you persistently fail to provide any evidence to support your beliefs. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 14, 2016, 2:15am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/176 "2016-04-14T02:15:37Z")
I’m confused: I thought the “Defense of Marriage Act” was exactly what’s being discussed: a Federal Law that defined marriage as the union of one man with one woman. And it was struck down by the Supreme Court, wasn’t it? Isn’t that the answer to **Shodan** ’s request for a cite? ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [April 14, 2016, 4:00am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/177 "2016-04-14T04:00:42Z")
> [@Trinopus](#): > > I’m confused: I thought the “Defense of Marriage Act” was exactly what’s being discussed: a Federal Law that defined marriage as the union of one man with one woman. > > And it was struck down by the Supreme Court, wasn’t it? Isn’t that the answer to **Shodan** ’s request for a cite? Yes, under the Fifth Amendment … _Obergefell v. Hodges_ was more specific in naming the 14th Amendment to overturn existing States laws banning SSM. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 14, 2016, 1:31pm UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/178 "2016-04-14T13:31:39Z")
To clarify: the 14th Amendment equal protection and due process clauses apply to the states only, and were the basis of _Obergefell_ (which struck down state SSM bans). The Fifth Amendment (generally applicable to the federal government for EP/DP purposes) contains a due process clause but not an equal protection clause, but SCOTUS has generally treated it as though it did (at least since _Bolling v. Sharpe_, 347 U.S. 497 (1954), which applied the reasoning of _Brown v. Board of Education_ to DC schools). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 16, 2016, 4:26am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/179 "2016-04-16T04:26:20Z")
> [@tomndebb](#): > > His claim was not that you have been provided legal citations, but that the historical evidence had been presented. > You are right that “there aren’t any” because the law never established either that opposite sex unions were the norm or that same sex unions were prohibited. > Rather, the presumption, based on societal understanding and not enshrined in law, presumed opposite sex marriage was the norm. Your persistent claims that marriage was defined (in law) as only opposite sex unions is wrong and you persistently fail to provide any evidence to support your beliefs. The word “marriage” may have never been defined in any statute, but its definition (before 2015) pre-dates the common law. Nobody ever talked about “opposite sex marriages” because the terms were redundant. Likewise nobody talked about a “same sex marriage” because it would have been an oxymoron. Laws don’t say things like “murder where a death results” or “robbery where a larceny occurs” or “larceny involving the taking of the property of another.” For example, my state code prohibits robbery as follows: [QUOTE=W.Va. Code 61-2-8 (a)] Any person who commits or attempts to commit robbery by: (1) Committing violence to the person, including, but not limited to, partial strangulation or suffocation or by striking or beating; or (2) uses the threat of deadly force by the presenting of a firearm or other deadly weapon, is guilty of robbery in the first degree and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than ten years. [/QUOTE] No other place in the entire code gives a definition for the word “robbery.” Would you argue that the definition of robbery is only a “presumption” and “based on societal understanding” or would you concede that the common law, which carries the same force as statutory law, provides the definition? Likewise, any previous discussion of marriage applied the common law meaning of that word. Although religion played a large part of it, the legal discussions regarding marriage assumed the common law requirement of opposite sex of the parties. So, Shodan is absolutely correct. The law, all forms of the law whether Babylonian law, Roman civil law, English common law, or common law of any of the United States, every society from the beginning of civilization until 2001 recognized marriage as an institution which by its very definition required opposite sex parties. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 16, 2016, 5:49am UTC](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083/180 "2016-04-16T05:49:02Z")
> [@UltraVires](#): > > . . . The law, all forms of the law whether Babylonian law, Roman civil law, English common law, or common law of any of the United States, every society from the beginning of civilization until 2001 recognized marriage as an institution which by its very definition required opposite sex parties. Even if this were true – and there’s plenty of debate to be had – so what? The law is capable of being changed, and language can follow as it will. I’ve actually had people tell me that Same Sex Marriage was bad, because it compels a change in the dictionary definition of the word. Well…tough noogies! The dictionary isn’t the source of legislation; the constitution is. The constitution has an “equal protection clause” which the Defense of Marriage Act violates. We don’t worry about language in a lot of places in real life. A child delivered by Caesarian surgery has never actually been through “birth,” but “from his mother’s womb untimely ripp’d.” But Caesarian babies still have birthdays. It would be possible to give a hundred examples. Language is not the dictator over mankind. [Previous page](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083.md?page=8) [Next page](https://boards.straightdope.com/t/could-the-refusal-of-garlands-nomination-dangerously-politicize-the-supreme-court/751083.md?page=10)