i did not see it but did read the synopsis on colbert site.
his reference to 5 unelected judges was to the 5-4 voting pattern which has been the standard for some time now. he obviously does not like what the 5 who are against his positions are saying (when they are against his positions).
bit how did he overlook the obvious as a Constitutional "scholar" and not see the issue is not about "marriage" par se but about equal rights which the Constitution does address?