In Obergefell v. Hodges (the recent gay marriage ruling), Samuel Alito writes in his dissent (p. 73 of this PDF containing the electronic opinion):

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

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

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    "Super" in the sense of over, above, on top of; in interpreting the law as the court wishes, the power exceeds that of ordinary legislation. (The Justice implies.)
    – Calchas
    Commented Jun 28, 2015 at 20:47
  • He's not the only one to say that actually. Some scholars agree but on an even broader basis repository.uchastings.edu/hastings_law_journal/vol66/iss6/6 And by this I mean they've included examples of Scalia's own decisions as super-legislation. Commented Feb 2, 2021 at 7:09

1 Answer 1


Super-legislative 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.

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

One criticism of super-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 some same-sex couples from marrying, say those that don't plan on raising children together.

The source of the United States Supreme Court's 'super' powers is based in the longstanding idea that it possesses the power of judicial review, by which the court can invalidate the laws of legislatures (or the actions of the executive branch).

Interestingly, "super-legislative" as a phrase seems to have peaked in popularity, according to Google Ngram Viewer, in the 1930s and 1970s.

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

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

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    So how is "super-legislative power" different from mere "legislative power"?
    – user43
    Commented Jun 28, 2015 at 17:38
  • @KenneyLJ I just added a phase that may explain. It departs from proper channels.
    – phoog
    Commented Jun 28, 2015 at 17:47
  • @phoog – I edited your edit. Commented Jun 28, 2015 at 17:53
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    There's also a view that the judiciary is generally the means of recourse if legislation seems to be unconstitutional; a judiciary that legislates in this way deters this kind of challenge, because although they are not bound by their previous rulings, it's hard to imagine they they would depart from it trivially. Hence super-legislative - they are not bound by judicial review in the same way that legislature, or lower courts are.
    – jimsug
    Commented Jun 30, 2015 at 2:49
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    @KennyEvitt Yes, that's true. Though I seem to recall (or have the sense) that the USSC is more willing to depart from their previous rulings than other courts, and as the highest court, their rulings aren't strictly binding. But the fact that they have ruled in this manner, and what you correctly say about precedent, further impedes or deters challenges - legislatures will be less willing to pass laws that would contravene this ruling, as they will think it likely to be found unconstitutional, &c. It isn't necessarily equal before the law as mere legislation would be.
    – jimsug
    Commented Jun 30, 2015 at 2:55

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