Rubicon has wisely and consistently focused here on the Supreme Court over-reaching in its authority, replacing the voice of the people and our self-rule...with "that eminent tribunal" as Lincoln called it. See:
Abraham Lincoln, the Supreme Court, and the Defense of Marriage Act
".......Lincoln’s rejection of the Dred Scott decision’s account of congressional authority was not intended as a mere theoretical exercise. His aim was not to see his counter-argument published in a learned journal. Rather, he made this rejection the basis of proposed political resistance to
the Court’s overreaching. (emphasis added)
When his great rival, Stephen Douglas, criticized him for refusing to accept the Court’s word as final on this question, Lincoln replied that each branch of the government has a right to its own interpretation of its own powers.........Regardless of the specific policy question at hand, however,
judicial activism like that in Dred Scott or Windsor is an attack on the core American principle of democratic self-government.
Just as the Taney Court told Americans in the 1850s that they were not permitted to govern themselves on the slavery issue, so today Justice Kennedy and his liberal collaborators on the Court are presuming to tell the present generation of Americans that they have no right to self-government on the question of defining marriage. That weighty question, they are telling us, will be decided by our betters—that is, by them.
Yet this kind of judicial presumption is not compatible with the American promise of popular self-rule. As Lincoln observed in his First Inaugural,
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
How, one might ask, does all this explain how we might have averted the defeat in the Windsor case? After all, the previous discussion has been about how leading statesmen ought to respond to the decision, which presupposes that it has already been made. The answer to this question is that Lincoln’s example shows how responsible political leaders should have been responding all along to the contemporary Supreme Court’s record of moralistic judicial activism, so that they might have deterred the Court from doing what it did in the Windsor case.
Unlike the Dred Scott ruling, the Windsor decision is hardly a bolt from the blue, an astonishing act of judicial legislation from a Court that had previously been characterized by its sobriety and restraint. On the contrary, the Windsor ruling was almost predictable as just the latest installment in an ongoing series of cases in which the Supreme Court has taken upon itself the right to substitute its judgment for that of the people and their representatives on the basis of a fictional constitution.
Over the last several decades, the Court has invented numerous hitherto unheard-of constitutional principles: a right to abortion, strict separation of church and state, a right to sexual liberty, and a right of enemy combatants to habeas corpus, among many others.
In other words, anti-democratic judicial activism has become not exceptional but habitual, and this could only happen because our elected leaders have declined to respond to it with Lincoln’s clarity and firmness. Had they done so, there is good reason to think that the Court would have withdrawn to a prudent exercise of its genuine authority......"
Abraham Lincoln, the Supreme Court, and the Defense of Marriage Act | Public Discourse