Discussion: WATCH: Rachel Maddow, Santorum Go Head-To-Head Over Gay Marriage

Chief Justice Roberts at one point in effect compared the marriage ruling (same sex marriage) to Dred Scott v. Sandford. Abraham Lincoln’s opinion on the case was that it was wrong and eventually the Supreme Court would discover the errors of their ways.

He also noted one ruling should not bind the country right away. If the opinion is seen by enough people as wrong, it could be challenged and only becomes firmly binding from such challenge when it in place for a long time, firmly accepted by multiple court action. So, for example, during the Civil War, Congress did protect rights of blacks though Dred Scott said they were not constitutional “persons.”

http://www.virginia.edu/woodson/courses/aas-hius366a/lincoln.html

Congress tried that when the Supreme Court struck down a punishment for burning the flag in protest. The Supreme Court then reaffirmed they previous opinion. An individual litigant might be barred from re-litigating something. Congress doesn’t have the problem. It might be a waste of time, but in that respect Santorum is correct.