Can a Supreme Court Ruling Be Unconstitutional, As Rick Santorum Suggested?

A Supreme Court decision cannot be unconstitutional. REUTERS/Lucy Nicholson

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As part of the "undercard" debate for second-tier Republican presidential candidates on Wednesday, former Pennsylvania Senator Rick Santorum said the United States Supreme Court's June 26 decision in Obergefell v. Hodges, which effectively legalized same-sex marriage, was "unconstitutional."

Santorum's comments came after candidates were asked to respond to the incarceration and subsequent release of Kentucky clerk Kim Davis after she refused to issue gay marriage licenses on religious grounds.

It is technically impossible for a Supreme Court decision to be unconstitutional, as the Court is endowed with judicial review, a right derived from Articles III and VI of the United States Constitution. Judicial review allows the Court to decide if actions by the Legislative and Executive branches are in keeping with the U.S. Constitution, and, if not, to rule them unconstitutional. The right to judicial review was codified in the landmark 1803 Supreme Court Marbury v. Madison.

Anger with the nation's highest court was on display at the first debate Wednesday night. CNN's Jake Tapper asked former senators Santorum and Lindsay Graham of South Carolina if they regretted voting to confirm Supreme Court Chief Justice John Roberts, who voted with the majority that Obamacare was constitutional (but also provided an eviscerating dissent in the Obergefell decision.) Neither said they did, but former Louisiana Governor Bobby Jindal argued Roberts's appointment was a mistake.

Santorum also said the Court's justices were "abusive" and "superseded their authority" in the same-sex marriage decision.

"Wow...we're going to have a president that defies the Supreme Court because they don't agree?" former New York Governor George Pataki retorted. "If we do that, we don't have the rule of law."

Correction: This article originally incorrectly stated that judicial review derives from the 3rd and 6th amendments to the U.S. Constitution. It derives from articles III and VI.