As Scalia said, the court has set itself up as the final arbiter of what the nation's moral standards must be.
"As Scalia said, the court has set itself up as the final arbiter of what the nation's moral standards must be."
Scalia right.
That is precisely what the Court has set itself up to be.
Effectively too. It now has that power.
If this is a usurpation, the answer would not be to dignify the usurpation by passing a bunch of laws against it (which the Supreme Court would strike down and thereby reassert its authority).
No, the answer would be to IGNORE the order issued without authority.
That is what would be required of any official.
If a military officer issues an illegal order that constitutes a war crime, it is his DUTY to disobey that order and report it. He cannot simply go in and shoot all the kids in the school because he has been ordered to, and then get off by claiming "I was just under orders."
Even for the military in time of war, we recognize that there are orders which American officers don't have the power to give.
Now, likewise if the President orders the Governor of a State to pardon a criminal, the Governor will almost certainly tell the President "You are out of line. You have no authority to issue such an order." And he will very probably directly defy the Presidential order (even if he agrees with the result) in order to clearly and firmly establish that the President of the United States does NOT have the authority to command Governors to undertake executive acts under state law.
Likewise too, when Congress subpoenas Presidential records, the White House frequently asserts "Executive Privilege" and defies Congress, on the grounds that Congress has no power to issue certain orders in the first place, and that the Executive Branch MUST NOT COMPLY with ILLEGAL orders issued without authority, even if Congress means well by it.
All of that goes out the window when it comes to the Federal Judiciary.
What the Supreme Court orders, everyone has obeyed since 1865.
Presidents and Congress and Governors and State Legislatures grouse that the Court has no authority to do thus-and-so, but they always obey. Where they have not obeyed, the other branches of government have closed in and compelled obedience to the Court.
The Supreme Court is the final arbiter of all law and government and power in America.
The Constitution does not say so, but IT says so, and everyone else has acquiesced to that power by 160 years of strict obedience.
The only way to establish that the Court does NOT have that power is for the covalent branches of government to publicly and explicitly defy a Supreme Court order and flatly state that the Court has no AUTHORITY to issue such order.
And that ain't gonna happen.
Because the Court actually DOES have all the authority Scalia says it has.