The Supreme Court has spoken: Obamacare will survive, and same-sex marriage is the law of the land.
Has the court under the leadership of Chief Justice John G. Roberts Jr. lost its ideological marbles and, gasp, turned liberal? That's the billion-dollar question observers of the high tribunal are asking in the wake of the tumultuous October 2014 term.
The answer, though complicated, is that the court's drift to the left has been exaggerated by cheerleaders on both ends of the mainstream political spectrum. Here are five takeaways from the current term to help explain why:
1. John Roberts is no David Souter, much less Earl Warren.
According to a detailed report published June 23 by The New York Times, two days before the ruling (King v. Burwell) on Obamacare was announced, the court was on track to conclude its most liberal term since the heydays of the Warren Court in the 1950s and '60s. The Times' article was based on the findings of the Supreme Court Database, an analytics-based research project that uses criteria developed by political scientists to evaluate and code the court's decisions.
With the release of Roberts' majority opinion in King and the opinion on same-sex marriage the next day, alarm bells were sounding on the American right, with the chief justice bearing the brunt of the opprobrium.
"Roberts = Souter," tweeted campaign consultant Matt Mackowiak, founder of the ultra-right Potomac Strategy Group, referring to former Supreme Court Justice David Souter, a Republican appointee who compiled a surprisingly moderate record during his tenure on the bench.
Roberts "is now just the water boy for the welfare state," tweeted the unremittingly hysterical Fox News host Andrea Tantaros, ratcheting up the heat another notch.
Extending the metaphorical social-media lynching of Roberts still further, Fox Business Network anchor Charles Payne bloviated in his tweet of the day that the King ruling was "another giant step toward Banana Republic." Although unspecified, Payne clearly had in mind the form of government at one time prevalent in Latin America, not the retail clothing chain.
And not to be outdone, Presidential candidate Ted Cruz -- the Texas senator whom I have sometimes compared in my own Twitter account to the late Sen. Joseph McCarthy, R-Wis., in both physical appearance and vitriolic rhetoric -- called for a constitutional amendment that would subject Supreme Court justices to periodic judicial-retention elections in order to "restore the rule of law."
The reality, of course, is that Roberts is neither the second coming of David Souter nor, even more so, Earl Warren. With few exceptions -- notably, the King decision and last year's unanimous ruling in Riley v. California that shielded arrestees from warrantless searches of their cellphones -- Roberts is what he has always been: a reliable conservative who nearly always votes in line with his backward-looking brethren Antonin Scalia, Clarence Thomas and Samuel Alito. In fact, according to the statistics compiled by Scotusblog.com, Roberts voted in agreement with Scalia during the current term at an 84 percent clip, higher than his agreement rate with any other member of the panel.
Any question as to Roberts' right-wing bona fides were laid to rest June 26 with his dissenting opinion in the court's landmark 5-4 ruling on gay marriage, Obergefell v. Hodges. Penning a dissent, Roberts channeled his own version of Ted Cruz, condemning the Obergefell majority's endorsement of same-sex marriage as an outrageous form of judicial activism, arguing:
"As a result [of the majority ruling], the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?"
Coming from the justice who just two years earlier had produced the majority opinion in Shelby County v. Holder that gutted the Voting Rights Act, such words rang hollow and hypocritical.
True to his usual form, on June 29, the last decision day of the current term, Roberts concurred in two conservative 5-4 opinions: a death-penalty ruling (Glossip v. Gross) written by Alito that upheld Oklahoma's lethal injection procedure; and an environmental opinion (Michigan v. EPA) by Scalia that overturned restrictions placed on the emission of hazardous pollutants from coal-based power plants.
Roberts also voted in the minority on the last day in a liberal 5-4 decision written by Justice Ruth Bader Ginsburg (Arizona State Legislature v. Arizona Independent Redistricting Commission) that upheld the creation of a redistricting agency in Arizona.
In the future, there is no reason not to expect more of the same from the chief.
2. Justice Anthony Kennedy remains the court's swing vote, but he is at best a moderate.
Long recognized as the court's pivotal member in close high-profile cases, Kennedy wrote the majority opinion in Obergefell. Earning well-deserved praise for his opinion not just from the LGBT community but broadly from all those who believe the Constitution was designed to protect an evolving rather than fixed set of social values, Kennedy wrote that couples seeking to wed have a fundamental right to "equal dignity in the eyes of the law" that only marriage can bestow.
As historic as the Obergefell ruling is, however, it is also modest from a technical legal standpoint. In particular, Kennedy stopped short of holding that sexual orientation generally -- like race, national origin or religious affiliation -- is what is termed in constitutional law a "suspect classification" entitled the highest degree of judicial protection. To withstand court challenges, laws and governmental practices that discriminate against people who fall within such classifications must pass an exacting "heightened scrutiny" test, under which it must be shown that the laws and practices under review not only further a "compelling state interest" but that they are narrowly tailored to achieve that interest.
Writing in The Guardian last Friday, columnist Scott Lemieux contended that: "The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims [in other contexts] that even Kennedy might think should be upheld."
As Lemieux notes, "LGBT people face many other types of discrimination -- in public accommodations and in employment, for example -- that now may have to be fought out case by never-ending case in the lower courts." Although federal civil rights statutes dealing with accommodations and employment do not specifically refer to sexual orientation, a pronouncement from the Supreme Court conferring suspect classification status on sexual orientation would greatly assist those future legal struggles.
Kennedy's moderate and cautious stance was also evident in last week's other 5-4 liberal triumph on discrimination under the federal Fair Housing Act. Writing again for the majority, Kennedy held that claims of housing and mortgage-lending discrimination could be based on a showing that established policies had an adverse disparate impact on minorities and that discriminatory intent need not be shown. The court majority nonetheless placed new procedural limits on when and how disparate-impact claims may be brought.
It should also be remembered that Kennedy's penchant for swinging goes both ways. In 2010, Kennedy crafted the majority opinion in Citizens United. And in 2012, he wrote another important 5-4 majority conservative opinion (Florence v. Board of Chosen Freeholders) upholding routine strip searches of all persons detained and admitted to general jail populations, even those arrested on minor traffic violations who are not suspected of harboring contraband.
3. Has the court actually moved to the left, or have conservatives overreached?
Amid the headlines trumpeting the court's tilt to the left, a more thoughtful alternative narrative is emerging that asserts conservatives are losing more big cases because they are pushing meritless claims up the judicial ladder. "While the justices may have shifted their views in some instances," Dartmouth government professor Brendan Nyhan reasoned in a June 25 New York Times article, "it's also possible that the types of cases the court is deciding have shifted."
As Nyhan and other analysts, including University of California Irvine law professor Rick Hasen, see things, conservative lawyers have become so emboldened by their recent high-court victories in areas ranging from the Second Amendment to voting rights and campaign finance, they are gambling more often than in the past that the court will continue to rule in their favor, even on patently weak claims. And while they sometimes secure enough votes to get their cases reviewed -- only four affirmative votes from the justices are needed to grant review -- prevailing on the merits is another matter.
The Obamacare decision in King v. Burwell is a prime example. Widely panned as a legal long shot when it began, the case contested language buried deep within Section 1311 of the massive Affordable Care Act about the availability of federal income tax subsidies to low-income purchasers of health insurance.
The right-wing activist attorneys who prosecuted the case argued that four words in Section 1311 -- "established by the state" -- meant that subsidies were available only to residents of states that had created their own marketplace insurance exchanges. Never mind, they insisted, that the remainder of the law required the federal government to provide an exchange if a state refused to establish one on its own.
Writing for a 6-3 majority that included Justice Kennedy, who had voted to strike down the ACA's individual mandate in 2012, Chief Justice Roberts did what any judge who had not taken complete leave of his common sense would do: He read Section 1311 in the context of the entire act and concluded that tax subsidies must be made available nationwide to those eligible.
Despite the drubbing they received in King, right-wing groups are sponsoring additional legal challenges to Obamacare. These include one filed by House Republicans that I have previously reviewed in this column, which asserts that that the Obama administration has illegally remitted funds to insurance companies to reimburse them for offering lower coverage rates to poor people.
Even in front of a conservative court, such cases will continue to run aground.
4. In the current term's biggest cases on Obamacare and same-sex marriage, Justices Scalia, Thomas and Alito were the biggest losers.
Whether it is the court as a whole that has drifted leftward or the far-fetched nature of some of the cases that explains the drift, at least three members of the panel -- the unholy trinity of Scalia, Thomas and Alito -- have remained entirely unmoved. In the term's biggest cases, they were increasingly isolated, intemperate, ineffectual and unprofessional.
Dissenting in King, on behalf of himself, Alito and Thomas, an exasperated Scalia fulminated, "Words no longer have meaning if an exchange that is not established by a state is 'established by the State.' " The majority's holding to the contrary, he scolded, was little more than "interpretive jiggery-pokery." Seemingly at his wit's end, sounding thoroughly beaten, he suggested the Affordable Care Act be renamed "SCOTUScare."
In Obergefell, all three arch-conservatives wrote separate dissents, along with Roberts. In his, Scalia branded the court's majority opinion on gay marriage as "a naked judicial claim to legislative -- indeed, super-legislative -- power." Lamenting the end of federalism and states' rights, he charged that "[a] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
And, he added for spite and good measure: "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie." Under the majority's tutelage, he wrote in a pithy footnote, "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie."
Reaching for the same hyperdrama in their dissents, Thomas cited legal history all the way back to the Magna Carta to demonstrate that the court had eroded the basic concept of human liberty, while Alito warned that same-sex marriage rights would be used to "vilify Americans who are unwilling to assent to the new orthodoxy."
Will the trend continue in the coming years? Unless the 79-year-old Scalia, the leader of the pack, retires -- perhaps to launch a new career in standup comedy or host his own regularly scheduled mad half-hour on Fox News -- you can count on it.
5. The court remains in play for the coming presidential elections.
Some justices may be more brazenly partisan than others, but from the founding of the republic, everyone elevated to the nation's highest court has been a political actor. And for the most part, with exceptions like Souter and Warren and Roberts on Obamacare, the justices have reflected the politics of the presidents who appointed them.
It should come as no surprise, then, that the major-party presidential hopefuls -- from Hillary Clinton and Bernie Sanders to Ted Cruz and Jeb Bush -- are talking about the kind of judges they would nominate to sit alongside Roberts. It would be nice, if only for a refreshing change, to have a presidential campaign that didn't frame the court's future as a central issue. Regrettably, we don't live in that sort of nice society. Once again, the court will be front and center as we head to the polls next year.
So get used to it. For better or worse, you'll be hearing a lot more about the nine men and women who head this country's third branch of government as we move along.
[This post was originally published by Truthdig.com]
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