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Obergefell was/is a very plausible extension of previous fourteenth amendment jurisprudence. Roe has obviously been done to death, but suffice it to say conservative courts have been just as willing to impose on the states - 2nd amendment cases most obviously, but also trade union law, campaign finance &c. There doesn't seem to be a notable political valence to legislating from the bench.
Yeah, no, not even remotely. Obergefell was an unusually vapid decision even for Kennedy. He should have retired to write poetry, because he was apparently so tired of doing jurisprudence he forgot to include any in Obergefell. At best, it raises the idea that because marriage is rooted in history and tradition (which is what makes it a cognizable right), same sex marriage must also be rooted in history and tradition. This is absurd on its face.
It's okay for the federal government to impose on the states, when the Constitution clearly authorizes it. But it's probably only fair to note that I also hate stuff like Commerce Clause jurisprudence; my concerns about Constitutional Law are admittedly far out of step with the legal profession and the practical reality that substantial portions of the Constitution are functionally dead letter.
But there is a noticeable political valence to respecting precedent and history. Less today than in the past, I'll grant, but when the precedent is really bad (and Roe was really bad, even Ginsberg regarded it a poor decision despite supporting its result), what else can you do?
This is a rather unfair reading. He freely admits that same-sex marriage is not itself rooted in tradition, but it doesn't need to be, as given that in many (even if not all) of the respects we do consider marriage to be an important liberty those rationales apply just as readily to same-sex marriages as traditional ones, such that preventing the former would be an abrogation of an important right, irrespective of whether the history and tradition that justifies that right was in fact exclusive of such marriages. Was marriage between prison inmates specifically rooted in history and tradition? If not, does that undermine Turner v. Safley?
Well that's sort of the nub. I defend clearly Constitutionally authorised rights/practices, you legislate from the bench, he tramples over states' rights.
Is there? I haven't been able to find any quantification of this question, but eyeballing some supposedly comprehensive lists it seems like except for a spate in the late 60s (most of which aren't particularly famous/significant) the overturning of precedents has happened at a relatively constant rate in the post-war period. Plus this is kind of another Russell conjugation - I rectify disastrous precedents, you have contempt for tradition. In any case, some of the most strongly conservative justices have the least regard for precedent. Thomas, most famously.
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