legal-terms
What did Samuel Alito (SCOTUS) mean by &quot;super-legislative&quot; power?
<p>In <em>Obergefell v. Hodges</em> (the recent gay marriage ruling), Samuel Alito writes in his dissent (p. 73 of this <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">PDF</a> containing the electronic opinion):</p>

<blockquote>
  <p>This is a naked judicial claim to legislative—indeed, <em>super</em>-legislative—power; a claim fundamentally at odds with our system of government.</p>
</blockquote>

<p>What does he mean "<em>super</em>-legislative" power (as opposed to mere "legislative power")? Or is he engaging in mere rhetorical flourish?</p>

<p><em>Super-legislative</em> refers to Alito's contention that the court is effectively legislating, i.e. creating new laws; and doing so by overriding the formal legislative bodies. It is implied by a belief that no existing laws or precedents recognize a right to marry.</p>

<p>One common criticism of courts exercising <em>legislative</em> powers is that they are not constrained in the same way that formal legislatures are, such as through elections.</p>

<p>One criticism of <em>super</em>-legislative powers is that they prevent future legislatures from any variation. As a (contrived) example, because of the specific ruling you mention, no future U.S. legislature can uphold a law prohibiting <em>some</em> same-sex couples from marrying, say those that don't plan on raising children together.</p>

<p>The source of the United States Supreme Court's 'super' powers is based in  the longstanding idea that it possesses the power of <a href="https://www.wikiwand.com/en/Judicial_review">judicial review</a>, by which the court can invalidate the laws of legislatures (or the actions of the executive branch).</p>

<p><a href="https://books.google.com/ngrams/graph?content=super-legislative&amp;year_start=1800&amp;year_end=2000&amp;corpus=15&amp;smoothing=3&amp;share=&amp;direct_url=t1%3B%2Csuper%20-%20legislative%3B%2Cc0">Interestingly, "super-legislative" as a phrase seems to have peaked in popularity, according to Google Ngram Viewer, in the 1930s and 1970s.</a></p>

<p>An example from the Ocala Star-Banner article "'Super' Legislative Body", published on June 18th 1964:</p>

<blockquote>
  <p>The Warren Court has gone off making its own laws again, usurping the legislative processes of this country.</p>
</blockquote>
