It has become received wisdom by the legal intelligentsia that the Supreme Court is illegitimate. They charge that the conservative justices are engaging in politicized decisions that advance Republican causes, which have no grounding in law. Critics blast the Court for not following procedural regularity and deciding important issues on the so-called “shadow” docket. This mantra is repeated so often that jurisdiction stripping, Court packing, or worse seems like a fait accompli when progressives regain power. Yet, these Court critics seem to have forgotten much of the past century. During the most convulsive days of the Warren Court, progressive elites raised no alarms. Rather, they celebrated as Chief Justice Earl Warren and his colleagues rewrote virtually every aspect of our legal order, from criminal law to religion to sexual privacy to election law and more. And all of this was done without even the slightest pretense of legal justification, beyond the justices’ personal preference for what would make a more just society.

　　Perhaps it is unfair to attack contemporary critics on this front, as they simply were not around during that bygone era. But a ten-year time horizon is fair game. Just over a decade ago, Obergefell v. Hodges (2015) invented a constitutional right to same-sex marriage, without even the slightest pretense of legal justification. To be sure, there were legal arguments that marriage laws amounted to unconstitutional forms of sex discrimination. But Justice Anthony Kennedy, the author of that decision, was never one for legal formalism.

　　When Obergefell was decided, the same legal intelligentsia that excoriates the present-day Court celebrated Justice Kennedy’s ruling, while ignoring the countless faults used to get the case there. Their failure to even acknowledge these problems disqualifies such critics from charging the present-day Court with illegitimacy. This double standard is especially apt for Justices Sonia Sotomayor and Elena Kagan. They joined Justice Kennedy’s majority opinion, yet now they have the audacity to criticize their colleagues for opinions that aren’t even in the same realm as Obergefell.

　　The journey to Obergefell took seven fateful steps. First, before there was Obergefell, the Supreme Court was asked to strike down the Defense of Marriage Act (DOMA). But the entire case was a setup. The Obama Administration agreed that DOMA was unconstitutional, but still insisted on enforcing the law so as not to moot the legal challenge. Second, given the lack of adversity between the challengers and the government, the federal courts had no business deciding the case. Yet, the Supreme Court plowed through all procedural hurdles, even while promising the public that this case did not disturb marriage laws. Third, almost immediately after DOMA was gone, federal courts began to strike down state marriage laws. Moreover, these judges did not put their rulings on hold to permit an appeal, so there was a simultaneous race to the altar and to the Supreme Court. Fourth, after some delay, the Supreme Court put same-sex marriage rulings on hold, only temporarily. But the Justices silently allowed marriage laws to fall in a dozen states through the “shadow” docket without the benefit of oral argument or a reasoned decision. Fifth, when the issue finally arrived on the Supreme Court’s merits docket, the focus was not on the law, but instead on an issue that was not presented: how children would feel if their gay parents could not get married. The original meaning of the Fourteenth Amendment, ratified in 1868, was irrelevant, as the Justices wielded the greatest act of judicial hubris in American history. Sixth, the outcome in Obergefell was never in doubt. Justice Kennedy had single-handedly built an entire judicial edifice for gay rights on his conception of “dignity.” Kennedy issued the three leading decisions about gay rights on the same day over the course of twelve years: June 26. Obergefell was almost certainly timed to coincide with Pride Weekend 2015.

　　The entire progressive public and private ecosystem united with a single purpose: to bring this case to the Supreme Court’s door while making it as hard as possible for a defense to be mounted.

　　Seventh, and finally, the Court took all of these actions without regard for stare decisis, the venerable principle that the Court should stand by precedent. Justice Kennedy blithely dismissed a ruling from 1971 that (correctly) recognized that the Constitution was silent about same-sex marriage. The precedential value of this case was in doubt, but the deeply rooted tradition of traditional marriage was universal. The Court rejected the received wisdom of countless civilizations from every corner of the globe over the course of millennia. Why? Because of insights revealed over the past two decades by the legal intelligentsia. Stare decisis, apparently, is for suckers.

　　In Obergefell’s first decade, the decision stood as a tribute to judicial supremacy. But in its second decade, Obergefell should be seen as a low-water mark of judicial craft and the measuring stick by which all other decisions should be compared. Anything the post-Trump Roberts Court has done pales in comparison with the contrived legal arguments and procedural shenanigans to constitutionalize same-sex marriage.

　　Step One: The Setup

　　Before there was Obergefell v. Hodges, there was United States v. Windsor. The Defense of Marriage Act (DOMA), signed by President Clinton in 1996, defined marriage for purposes of federal law as the union between one man and one woman. Same-sex couples would not be considered married for purposes of federal law, even if they were married in a jurisdiction that allowed gay marriage.

　　In 2007, Edie Windsor married Thea Spyer in Canada where it was legal. Two years later, Spyer passed away. Had Windsor married a man, she would have been eligible for a tax benefit after her husband’s death. But due to DOMA, Windsor was denied that federal tax benefit.

　　Windsor sought a refund of the tax she paid, arguing that DOMA was unconstitutional. The Obama Administration determined that DOMA was unconstitutional, and refused to defend the law in court. This decision was a stunning abdication of the executive’s duty to defend the law. There were many non-trivial arguments that could have been made in support of the law—the Supreme Court ultimately split 5-4!—but the Obama Department of Justice made none of them.

　　Given that the administration determined the law was invalid, the most reasonable course would have been to provide Windsor her refund. But the administration did not take that path. By refusing to grant Windsor the refund, Attorney General Eric Holder kept the case alive so it would not become moot. And, in a strategic ploy, the government filed a petition for certiorari before judgment to the Supreme Court, even though it would no longer defend the law. A cynic could see through this stratagem. The DOJ did not want to defend a law it deemed unjust, but was intent on getting the case to the Supreme Court so Justice Kennedy could strike down DOMA. It was a setup. Regrettably, this strategy was rewarded.

　　Another setup should not be forgotten. After the Obama Administration refused to defend the law, the House of Representatives voted to hire private counsel. The House retained leading conservative Supreme Court litigator Paul Clement to defend DOMA. Liberal activist groups, however, pressured Clement’s firm, King Spalding, to drop the case. They argued that any defense of DOMA was homophobic. To be clear, the same people who pushed the Obama Administration not to defend the law now leaned on Clement’s firm to prevent the law from being defended. Clement, to his credit, refused to drop his client, and left the firm.

　　Key to the Court’s Windsor holding was that Windsor still had not received her refund. And whose choice was that? The Obama Administration took that exact tactic to ensure the case could be resolved by the Supreme Court.

　　Ultimately, Windsor demonstrates how the entire progressive public and private ecosystem united with a single purpose: to bring this case to the Supreme Court’s door while making it as hard as possible for a defense to be mounted. I wish that conservatives worked together so effectively.

　　Step Two: Lack of Adversity

　　The Supreme Court’s ultimate decision in United States v. Windsor was entirely unsurprising. By a 5-4 vote, Justice Anthony Kennedy found that DOMA was unconstitutional. The analysis did not follow well-settled constitutional doctrine. The Court didn’t even bother to decide the appropriate standard to review laws that discriminate on the basis of sexual orientation. Rather, it was enough to say that DOMA denied dignity to gay couples and demeaned their children.

　　My point here is not to rehash the merits. Rather, the far more problematic issue was that the Court reached this holding even though there was no adversity between Edie Windsor and the Obama Administration. Key to the Court’s holding, which Justice Antonin Scalia called “jaw-dropping,” was that Windsor still had not received her refund. And whose choice was that? The Obama Administration took that exact tactic to ensure the case could be resolved by the Supreme Court. This chicanery was rewarded. And the majority engaged in their own games.

　　Virtually every sentence that Justice Kennedy wrote supported a constitutional right to same-sex marriage. Yet, the very last sentence stated, “This opinion and its holding are confined to those lawful marriages.” In other words, this decision only addressed same-sex marriages that were already performed, not whether states had to offer same-sex marriages or recognize such unions performed elsewhere. Justice Scalia did not believe it. He wrote, “The only thing that will ‘confine’ the Courts holding is its sense of what it can get away with.” Indeed, Justice Scalia’s prediction would prove far too accurate. In short order, motivated lower court judges would disregard Justice Kennedy’s attempt to limit his opinion, and gleefully cite Justice Scalia’s admonition.

　　Step Three: The Race to SCOTUS—and to the Altar

　　Windsor was decided on June 26, 2013. Almost immediately, traditional marriage laws were challenged across the country. The strategy was clear: flood the zone and hope that many judges would find them unconstitutional. And once that goal was achieved, as many couples as possible would get married before a higher court intervenes, on the belief that it would be difficult to later rescind the marriage licenses. The strategy worked to perfection, aided and abetted by willing judges. The first race to the altar came in Utah, a state that was admitted to the Union on the condition that marriage was limited to one man and one woman.

　　Let’s set the scene. On the afternoon of Friday, December 20, 2013, Judge Robert J. Shelby declared Utah’s marriage law unconstitutional. He put his order into effect immediately. And within hours, hundreds of same-sex couples rushed to get married, as the Salt Lake City Clerk’s office stayed open late. Here, the judge issued his decision on the Friday before Christmas, when lawyers in the Utah attorney general’s office were no doubt home with their families. The Obama nominee did not even temporarily stay, or pause, his ruling to permit the state to appeal. A cynic might think the judge timed his opinion to make it as hard as possible for the government to appeal.

　　On New Year’s Eve, Utah was forced to file an emergency appeal to the United States Supreme Court. All the while, marriage licenses were being issued to same-sex couples. Justice Sotomayor, who had responsibility over appeals from Utah, took nearly four days before calling for a response. (The New Yorker was busy dropping the ball in Times Square.) Finally, on January 6, Sotomayor granted a stay. Nearly seventeen days elapsed from Judge Shelby’s order until the Supreme Court intervened. In the interim, Utah issued over 1,300 marriage licenses to same-sex couples.

　　This sort of chicanery unfolded in other courts. Judge Shelby in Utah and others behaved recklessly. Even if they were convinced that the Supreme Court would ultimately find that marriage laws were unconstitutional, prudence dictated putting those rulings on hold to permit an orderly appeal. But Judge Shelby and his colleagues were so eager to promote the cause that they frustrated any efforts to pause their own rulings.

　　Step Four: SSM on the“Shadow Docket”

　　In 2015, Professor William Baude coined the phrase “shadow docket” to refer to the Supreme Court’s practice of deciding certain emergency cases without a full briefing schedule and oral argument. But back in 2014, the shadow docket had not yet emerged. With the benefit of hindsight, the Supreme Court’s January 2014 ruling pausing same-sex marriages in Utah was one of its most important emergency docket orders to date. Indeed, judges should have concluded that the Supreme Court was sending a signal: to avoid the chaos that unfolded in Utah, put all rulings on hold until the Supreme Court can settle this issue nationwide. Many courts got the message. But other judges preferred to let love win.

　　District courts in four states—Tennessee, Michigan, Wisconsin, and Indiana—ordered that same-sex marriage licenses must be issued or recognized immediately. Although in each case a higher court issued a stay after a quick appeal, it was not soon enough to prevent a repeat of the chaos in Utah. For example, Judge Bernard Friedman struck down Michigan’s marriage law, but didn’t even consider the effect of the Supreme Court’s Utah ruling. Approximately 300 couples obtained licenses in a twenty-four-hour period before the Sixth Circuit Court of Appeals issued an emergency stay. Judge Richard Young in Indiana likewise refused to stay his ruling, leading to nearly a thousand marriage licenses being issued.

　　Not to be outdone, Judge Barbara Crabb declared Wisconsin’s marriage law unconstitutional, but she declined to enter an injunction. Eight days after her ruling, she finally issued an injunction, followed by an immediate stay.

　　Why didn’t Crabb stay the judgment one week earlier? A cynical explanation may lie in her opinion granting the stay. She wrote, “After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary.” Critics ridicule the Roberts Court for making rulings based on vibes, but that is exactly what happened here. Judge Crabb wanted love to win. She deliberately refused to issue an appealable judgment, which foreseeably led to the issuance of marriage licenses, and then cited the issuance of those licenses as a reason against granting a stay.

　　Perhaps it is unfair to place all of the blame on the lower courts. In October 2014, the Supreme Court issued perhaps the most momentous shadow docket ruling ever. Not a single favorable ruling that President Trump received is even in the same ballpark as what the Kennedy Court cooked up. At the time, appeals had been filed from rulings that declared marriage laws unconstitutional in the Fourth, Seventh, and Tenth Circuits, covering thirteen states. Yet, the Supreme Court denied review, without any explanation. The effect of those denials was to immediately bring into effect the lower court rulings. Marriage was instantly legalized in the Southeast, Midwest, and Mountain States, without a word from the Supreme Court.

　　Two weeks earlier in remarks at the University of Minnesota Law School, Justice Ruth Bader Ginsburg hinted that “when all the courts of appeals are in agreement there is no need for us to rush to step in,” although “sooner or later, yes, the question will come to the Court.” Inexplicably, there were no dissents from the Court’s conservatives. Justices Antonin Scalia and Clarence Thomas were missing in action. No ruling on the Supreme Court’s modern-day emergency docket comes close to the effect of the 2014 denials. In January 2015, the Supreme Court granted review after the Sixth Circuit upheld marriage laws from Michigan, Ohio, Tennessee, and Kentucky.

　　Step Five: Won’t Somebody Please Think of the Children?

　　The oral arguments in Obergefell were held in April 2015. But by that point, the die was already cast. The Court had already allowed gay marriage to go forward in many states. There was no realistic chance that a majority of the Court would somehow claw those licenses back. Unsurprisingly, the Justices seemed uninterested in actually talking about the legal defense of marriage laws.

　　John Bursch, who defended Michigan’s marriage laws, explained that traditional marriage was understood to promote responsible procreation and create incentives to bind “children with their biological mom and dad.” But, he warned, there would be “consequences” if the Court were to “change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad.”

　　Justice Kennedy’s response completely missed the point. Instead of acknowledging how his ruling could alter society, even in the slightest way, he could only see how the marriage laws denied dignity to gay couples. Kennedy said that Bursch’s argument “assumes that same-sex couples could not have the more noble purpose.” Instead, Kennedy declared, these couples “understand the nobility and the sacredness of marriage.” Even if they “cant procreate,” they still have a “dignity that can be fulfilled.” No one disputes that gay couples could feel dignified by marriage—whatever that actually means. Rather, the issue was whether the state could consider how recognizing those unions might affect how parents and children view the institution of marriage. In a case of such gravity, the arguments didn’t actually matter here.

　　My purpose here in recounting the path to Obergefell is not to make the case for overruling the precedent.Rather, it is to highlight a painful double standard.

　　Even though the case was ostensibly about marriage, what motivated the ruling was the youth. To quote The Simpsons’ Helen Lovejoy, “Won’t somebody please think of the children?” I counted more than a hundred references to “child” or “children” or “kids” in the course of ninety minutes. Recently, Kennedy defended Obergefell in his memoir. He thought “the most persuasive argument for gay marriage” was that gay couples could not adopt together, which was “terribly demeaning for the children.” This is a policy argument, and not a constitutional argument. Indeed, wouldn’t the more narrow remedy be to prohibit states from discriminating against gay couples? Even when Lawrence v. Texas was decided in 2003, gay people in Texas were allowed to adopt children. There was no compelling need to force states to recognize those unions.

　　Finally, the justices were utterly unconcerned with the original meaning of the Fourteenth Amendment, which was ratified in 1868. Until the twenty-first century, no country in the world permitted same-sex marriage. But for Kennedy, the starting point was his own opinion in Lawrence from a decade earlier. He asked Donald Verrilli, the Obama administration’s Solicitor General, “Haven’t we learned a tremendous amount since Lawrence, just in the last 10 years?” As the justices sopped up content served by the intelligentsia, the meaning of the Constitution apparently changed. Verrilli agreed. He said, “What these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now.” Now, as in the present day.

　　Critics often assail the Roberts Court as an illegitimate institution that makes rulings without any basis in law. Indeed, Justices Sotomayor and Kagan have given aid and comfort to these charges. But those Justices who joined the Obergefell majority have permanently disqualified themselves from making charges about judicial legitimacy. Dobbs v. Jackson Womens Health Organization (2022), perhaps the most attacked decision in modern history, reversed Roe v. Wade (1973). As a legal matter, Dobbs was emphatically correct and was grounded entirely in the simple fact that the Fourteenth Amendment, ratified in 1868, did not protect a right to abortion. Whatever you might think about the Roberts Court’s rulings on the Second Amendment, affirmative action, election law, and more, even the most unfair critics must acknowledge there has been some patina of law. But nothing of the sort can be said for Obergefell.

　　Step Six: Justice Anthony M. Kennedy Day

　　Obergefell v. Hodges was decided on Friday, June 26, 2015. The timing here was important. In 2015, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But June 26 was a very significant day in modern Supreme Court history. On June 26, 2003, Justice Kennedy issued the majority opinion in Lawrence v. Texas, finding that the Constitution protects a right to same-sex relations. Exactly ten years later to the day, on June 26, 2013, Justice Kennedy issued the majority opinion in US v. Windsor, striking down the Defense of Marriage Act. Fast forward two years to June 26, 2015, when Obergefell would be decided.

　　This date had further significance. Pride Weekend would begin the following day. At the time, commentator David Lat wondered if Joshua Matz, Kennedy’s gay law clerk, “pointed out to his boss … that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community.” (Before his clerkship, Matz co-authored a book with Professor Laurence Tribe advocating why it was time for SCOTUS to recognize a constitutional right to same-sex marriage.) Justice Kennedy ensured that gay couples could marry nationwide on Pride Weekend.

　　And so it came to pass. The Supreme Court’s least democratic decision in modern history was timed to coincide with Kennedy’s other decisions favoring gay rights, just in time for Pride Weekend. Indeed, quotes from Kennedy’s opinion were used in wedding vows. The people of the states—the root source of sovereignty—sought to amend their constitutions to preserve traditional marriage, but a group of five lawyers ruled they knew better. There is little doubt the Supreme Court, acting as a super legislature, scheduled its ruling for symbolic effect, to ensure that gay and lesbian couples could marry during a special time. And the Court’s liberals tagged along, simply because they had the votes. Nothing the Roberts Court conservative has ever done came even close to this level of audacity. Indeed, complaints about rushed decisions on the emergency docket ring hollow in light of Obergefell’s timing.

　　Exactly one decade later, former Justice Kennedy lectured President Trump about being a threat to democracy. “Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be,” the 88-year-old retired justice said. “If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk.” If Kennedy wants to see who placed democracy at risk, he should look in a mirror. Justice Scalia’s Obergefell dissent stated the issue in the way only he could: “Those who founded our country would not recognize the majority’s conception of the judicial role. They, after all, risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”

　　Step Seven: Stare Decisis was for Suckers

　　The Obergefell majority opinion elicits the same response that Professor John Hart Ely gave to Roe v. Wade: it was “not constitutional law and g[ave] almost no sense of an obligation to try to be.” Justice Kennedy made no effort to fit his ruling into constitutional doctrine.

　　The Obergefell opinion began, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In dissent, Justice Scalia mocked his colleagues, two of whom are still on the Court: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” this way, “I would hide my head in a bag.” Yet, perhaps the most galling aspect of the opinion was its complete disregard for stare decisis, the principle that the Court should stand by its decisions. Some background here is helpful.

　　Did progressives simply contract a case of selective amnesia, such that the entire run-up to Obergefell was simply forgotten? Or is “legitimacy” merely a function of who stands to benefit from a ruling?

　　The modern doctrine of stare decisis was developed in Planned Parenthood v. Casey (1992). This decision purported to affirm the “core” holding of Roe v. Wade, even as Justice Kennedy, joined by Justices Sandra Day O’Connor and David Souter, rewrote the landmark abortion precedent. But as relevant for our purposes, the troika explained at some length why they would not overrule Roe, even if they thought the decision might have been wrongly decided. In short, the justices worried that the Supreme Court’s legitimacy would be weakened if Roe were overruled in response to a public pressure campaign. They wrote, “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Courts legitimacy beyond any serious question.” In short, the justices would not overrule that precedent while “under pressure” from public and private groups that opposed Roe.

　　I question this principle in the abstract, but Kennedy could not be bothered to follow his own words. Bowers v. Hardwick (1986) held that the Constitution does not protect a right to homosexual sodomy. Over the next two decades, there was an intensive pressure campaign by gay rights groups to overrule Bowers. In Lawrence, the Court did just that. In short, the Court overruled a precedent “under pressure.” As Justice Scalia pointed out in dissent, the majority opinion was the “product of a law-profession culture” that was “directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Kennedy didn’t even mention Casey. Did Lawrence undermine the Court’s “legitimacy?” Of course not. Justice Kennedy reached the right result, so he would be celebrated.

　　Immediately after Lawrence was decided, an even greater campaign began to pressure all facets of society to embrace same-sex marriage. Those who opposed changing the institution were shunned as bigots. The intelligentsia served the Court with all the persuasion it needed to hear. Kennedy’s majority opinion in Obergefell actually cited “countless studies, papers, books, and other popular and scholarly writings” that “led to an enhanced understanding of [same sex marriage]—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.” According to the Supreme Court, the meaning of the Constitution was rewritten by liberal law professors. And in doing so, the Supreme Court overruled a four-decade-old precedent.

　　In 1971, the Supreme Court decided Baker v. Nelson. This summary opinion ruled that there was no conceivable federal question whether the Constitution protects a right to same-sex marriage. Yet Obergefell blithely overruled Baker. Obergefell, like Lawrence before it, overruled precedent while “under fire.” But, like in Lawrence, the Court’s legitimacy was safe because the Court reached the right result that elites favored. Never forget: judicial legitimacy is merely a measure of whether progressives are pleased by the Court’s rulings. The doctrine has no actual substance.

　　The Roberts Court is routinely attacked for overruling precedents, mostly from the Burger Court. Perhaps the most significant such case was Dobbs, which overruled Roe v. Wade. A popular liberal podcast attacks the Roberts Court with the charge that “stare decisis is for suckers.” In other words, only foolish liberals will believe in stare decisis, because conservatives will ignore it. This charge is misguided. Dobbs carefully worked through all of the stare decisis factors and found that the right to abortion, which was invented in the 1970s, could not stand. But Obergefell rejected every conception of precedent stretching much further back. The opinion had no basis in the text, history, and tradition of our nation, or of all recorded civilization. The concept of same-sex marriage did not exist until the early twenty-first century, yet somehow in the span of two decades it became a fundamental constitutional right.

　　Today, liberals excoriate a purported right to bear arms, even as there is a centuries-long tradition of gun ownership. But a fundamental right to gay marriage can emerge before its sweet sixteen. As Chief Justice Roberts observed, “the Court invalidate[d] the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” He asked, “Just who do we think we are?” Justices Sotomayor and Kagan, who joined the Obergefell majority, should be permanently disqualified from complaining about stare decisis.

　　Obergefell’s Second Decade

　　As we enter Obergefell’s second decade, I do not yet see the sort of groundswell of opposition that could lead to the decision’s reversal. There is nothing like the five-decade-long backlash to Roe v. Wade, which culminated in the Dobbs decision. On the current Court, only Justice Thomas seems willing to revisit the decision, and even he did not publicly vote to grant review in Kim Davis’s challenge to Obergefell. But my purpose here in recounting the path to Obergefell is not to make the case for overruling the precedent. Indeed, even if Obergefell were overruled, the positive laws in nearly every state would continue to protect same-sex marriage. Plus, with virtual wedding officiants, gay couples in all fifty states could easily get married. Despite the fear-mongering from the Court’s progressive wing, the world would not look much different in a post-Obergefell world.

　　Rather, my purpose here is to highlight a painful double standard. When progressives can effect a revolution through the courts, no procedural or substantive rule will stand in the way. Cultural elites will celebrate that ruling and rebut any charges of illegitimacy. And conservatives, perhaps due to their Burkean nature, never even considered retaliation with remedies like jurisdiction stripping or court expansion. But starting in 2018, before the Court issued any landmark conservative decisions, liberals preemptively felt compelled to delegitimize the Court. So when conservative decisions came, the Court was already tainted with the brush of corruption.

　　Did progressives simply contract a case of selective amnesia, such that the entire run-up to Obergefell was simply forgotten? Or is “legitimacy” merely a function of who stands to benefit from a ruling? The left insists that Roe and Obergefell, which removed contentious issues from the political process, were legitimate. But the left maintains that Dobbs, which restored the contentious issue of abortion to the political process, was not legitimate. In the end, charges of illegitimacy are artificial and merely serve as a means to an end. Obergefell should be held up not only as a tribute to judicial supremacy and hubris, but as the measuring stick for all exercises of judicial legitimacy. Nothing the Roberts Court has done comes even remotely close to what the Kennedy Court did in Obergefell.