In terms of its reasoning, what Supreme Court did in Obergefell – as in Roe v. Wade – was every bit as lawless as anything Roy Moore has ever done. Nobody would seriously argue that the Due Process Clause in the Fourteenth Amendment was intended or understood, when enacted by the people’s representatives in 1868, to make the marriage laws of every state over all of American history to date unconstitutional. The Obergefell majority did not even pretend to argue so, or even address the meaning of the text it interpreted. The majority felt that it was doing Right, so text of law and consent of the voters be damned. The worst nightmare of how Roy Moore would act with unchecked power to issue social-policy edicts is that he would act as the Obergefell majority did. Liberals who gloried in the ability to exercise that power without any possibility of restraint should consider how they should like it to be restrained in the hands of a man like Moore.

Judicial supremacy is a serious problem, especially if you think of judges as inherently political actors, and thus believe that their decisions should not be treated as if they were literally the Word of God. But whatever its best solution, Judge Moore’s approach was the wrong one, and very properly ended with him becoming ex-Judge Moore. The legitimacy of any act of government in America comes down to one simple question: who decides? Moore wasn’t given the power to decide that whatever he wants to be the law, is the law – at least not as far as federal law goes. A state judge doesn’t get to decide what federal law is, once federal courts have decided otherwise. The answer to the rule of judges is not to empower different judges, even ones (like Moore) elected by the people to roles explicitly subservient to the federal courts.