Well, the rule of law was fun while it lasted. Really excited to see where this new “the law means whatever the party in power (or really just the Left) thinks it means” principle goes. Should be fun. For the past several days we’ve been treated to half a dozen politicians-masquarading-as-impartial-judges in black robes just making shit up in order to fulfill their political goals. It was capped off Monday morning with Justices Ginsburg and Breyer declaring that the death penalty – which is explicitly allowed in the Constitution – is unconstitutional. Fortunately, those two buffoons were in the minority and that case went the correct way. In another case that morning, five justices showed that they don’t know what the term ‘legislature’ means. These are the times we live in now, so I guess we better get used to them. Words have no meaning, there is no objective reality, we just do what we want.
Anyway, going back to the beginning: the travesty that was King v Burwell. Chief Justice John Roberts helped re-write Obamacare during its first time at the Court, and decided to help re-write it again this second time around. Why even pass laws anymore when agencies can simply assert the opposite meaning and the Court will allow the re-write because well, perhaps that’s what they really meant to say? NRO explains:
The text of the law authorizes federal subsidies on health-insurance exchanges “established by the state,” but does not authorize them on exchanges established by the federal government. Since most states have not established exchanges, reading the law the way it was written would limit the law’s reach. The administration therefore decided not to do so — and the Court has blessed its decision, and barred future administrations from revisiting it.
His point is that in the absence of subsidies, the law’s regulations would destroy insurance markets. Congress, he writes, could not have intended for the law to have this effect. But the question of what Congress intended in the absence of widespread state cooperation with the law is surely the wrong one to ask, since there is little evidence that Congress ever considered the topic.
Scalia’s dissent is, of course, amazing. As John Daniel Davidson writes, and I can’t emphasize enough, this is really bad for the rule of law going forward. I’m not even that mad about what this means for Obamacare. I think it will fall on its own anyway and I always assumed the spineless GOP was going to save the damn subsidies no matter what. But this sets a really bad precedent for a nation that is supposed to be of laws, not men:
The Supreme Court ruling in King v. Burwell affirms a philosophy of governance fundamentally at odds with the meaning and purpose of the U.S. Constitution and the ideals of America—that we should be a nation ruled by law, not by men, still less by unelected bureaucrats in Washington, D.C. The decision, which preserves subsidies for health insurance on exchanges set up by the federal government in 34 states, amounts to a repudiation of the constitutional principle of separation of powers in favor of rule by an administrative bureaucracy.
Scalia and his fellow dissenters (Justices Alito and Thomas) rightly believe the consequences of Burwell are far-reaching. No longer must elected representatives pass actual laws. It’s enough, now, for Congress to express a desire for a policy outcome and leave the details to an unelected bureaucracy—even when those details involve billions of dollars in taxes and spending, strict mandates and penalties, and government control over vast swaths of the economy. Such a shift bodes ill not just for the opponents of the administrative state but also for the Court, which will henceforth be seen—if it is not already—as yet another partisan branch of government.
The other garbage opinion of last Thursday (arguably even worse than King), was Kennedy’s laughable disparate impact decision. Read about the history of disparate impact here and the decision in a nutshell is described here:
The Supreme Court last week ruled 5-4 (Justice Kennedy writing the majority opinion, joined by the four liberal justices) that “disparate impact” claims may be brought under the Fair Housing Act. The court’s decision fails to follow the clear language of the statute, and it will encourage race-based decision making in the housing area — exactly what the Fair Housing Act was meant to prohibit. Here’s why. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color or national origin, but also religion, sex or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent and in its application. The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.
Disparate impact has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession. The disparate-impact approach pushes potential defendants to do one or both of two things: Get rid of perfectly legitimate selection criteria or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right. In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin. And the fact of the matter is, there is probably no selection criterion — not a single one — that does not have a disparate impact on some group or subgroup.
So, have fun getting sued whether you meant to discriminate or not, local governments, lenders, and those in real estate! Thanks Justice Kennedy!
The following day we were treated to more of Kennedy’s nonsense in a majority opinion that was, as David French put it, “nine parts romantic poetry and one part legal analysis (if that).” Let me just preface my rant by saying I’m not upset that gay people are going to be able to get married. I’m happy for my gay friends. I don’t buy the “this will ruin marriage” argument. Straight people ruined it long ago (starting with no-fault divorce). I’m upset at Kennedy’s poorly reasoned, nonsense opinion and the death of federalism. Kennedy’s reasoning is basically: “I like marriage and I like gays and the two together sound like PB&J to me! Let’s do this!” This was an act of will, not legal judgement. It was not the Court’s decision to make. The Constitution says nothing about marriage, and no, the framers of the 14th Amendment (which was about slavery) did not intend it otherwise. The Court overstepped its role (which sets a bad precedent for the future) and didn’t do its job in applying legal reasoning to legal questions. Furthermore, this “Love Wins” stuff is nonsense, as Ace points out here. The state’s interest is not in “love” – the state ignores lots of “loving relationships” – but in the production of children, and state-sanctioned same-sex marriage is therefore nonsensical. I would rather the state get out of marriage altogether, but that’s not going to happen. I think a good solution would be civil unions/private contracts and leave marriage to the church, but that ship has sailed.
I recommend reading all four of the dissenting justices to understand why this is such a terrible decision. Let’s start with a couple excerpts from Chief Justice Roberts, who is a totally different man in this dissent than the one who wrote the King opinion:
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.…
LOL THIS FUCKING GUY. Yesterday the Court was a legislature, today it’s not. GTFO. Moving on…
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges…When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate…But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.…
Justice Alito’s dissent perfectly captures my main concern with this decision:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Justice Thomas shows why he is my favorite justice:
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic…Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.…
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.…
“Liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrow than that, encompassing only freedom from physical restraint and imprisonment.
Scalia’s dissent is, of course, awesome. You should go read it. I was going to talk about my concerns for religious liberty and conscience rights going forward, since the Left can’t take ‘yes’ for an answer and is in no way going to stop here, but this post is long enough already. I’ll save that for a different post. I’ll leave you with links and brief excerpts of two excellent pieces at NRO. First, Andrew McCarthy notes that there is never any doubt about which way the “liberal” justices will vote:
Did you notice that there was not an iota of speculation about how the four Progressive justices would vote? There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation. How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory. But not the Court’s lefties, not on the major cases. And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable. But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution. That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law…But we are a nation of will, the will of a determined political movement, so the law never had a chance. The Supreme Court is not unique in being captured by progressives. It is a lagging indicator, its crush of late-June edicts reflecting what’s become of the political class of which it is now very much a part. The president rules unilaterally and in contravention of the laws. Half of Congress applauds, the rest shrugs and says there is nothing to be done. The elements of the progressive agenda the political branches don’t feel safe implementing are delegated to anonymous bureaucrats in the administrative state. The courts are there to finish the job, to give any mopping up the aura of legal rigor. But none of it is about the law, or even expected to be. That time is gone.
And here’s Kevin Williamson eviscerating Roberts:
In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want. That texts may be imaginatively interpreted to any end is not news — “The devil can cite Scripture for his purpose,” as William Shakespeare observed in The Merchant of Venice. The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea, but, to be fair, that is an easy provision to overlook, even for a mind as keen as Barack Obama’s, since the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right.
The gentlemen who wrote the Constitution did not get around to enfranchising women or abolishing slavery, but they snuck in a constitutional right to gay marriage that we’ve somehow overlooked for 228 years or so: No mentally functional adult, regardless of his views on gay marriage, should be expected to pretend that that is true. I am in favor of arranging the laws to permit gay couples to arrange their domestic affairs in whatever way they see fit, and to have those affairs blessed by whatever authorities are inclined to bless them…it’s a free country, Sunshine. Unlike Barack Obama, I did not arrive at my views on same-sex affairs recently and at a moment of political convenience. But, that being said, the idea that lurking in the penumbras of our 18th-century Constitution is a fundamental national right to gay marriage is simply preposterous. It is not there.
We know that the Court’s liberals are going to vote one way, that some of its conservatives will probably vote another, and that John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95. That the chief justice went one way on health care and another on marriage tells us nothing at all about the law or the Constitution: It tells us about John Roberts. And that is the problem. Asked what he thought about Western civilization, Mohandas K. Gandhi supposedly quipped that he thought it would be a good idea. Conservatives, if we’re being honest, might say the same about the rule of law. It would be a good idea, at least an interesting experiment. For the moment, though, there’s only power, the men who have it, and the things they do with it.
Anyway, happy for my gay friends and will be happy for the polygamists when they get granted their new Constitutional right, too. Not happy we are living in a country in which federalism is dead and everyone is forced to live under the whims of a small majority.
