Obergefell v. Hodges, in which the Supreme Court considered whether states had to recognize a right to same-sex marriages, and King v. Burwell, in which the Court was called upon to clarify some incompetent drafting in the Affordable Care Act, could not be more dissimilar in terms of issues, topics, and significance. Nonetheless, because the two decisions involved hot political issues and arrived on consecutive days, and because they ended up favoring the positions that Democratic and progressive partisans support, they have been conglomerated in public discourse to fit several general themes, all, to varying degrees, misleading, simplistic, and biased. The decisions have also launched some of the most hysterical and embarrassing commentary in recent memory.
Some ethics, as opposed to legal, observations:
1. Anyone who hasn’t read the majority opinions and the dissents, who just skimmed them—believe me, if law school taught me anything, it taught me that skimming court opinions was a sure road to error and humiliation—or who read them but could not understand them, should be ignored, and perhaps gently mocked, for expressing any view at all about whether the decisions were the “right” ones. Quite simply, such people are not qualified to hold an opinion. They can have, and express, an opinion regarding whether the Court’s calls on Burwell or Obergefell are consistent with their own needs, desires, belief or political orientation, but they have no basis for asserting that either decision is wrong, or, right, on the law.
2. One can find it troubling and ominous, as I do, that the votes on the two cases were as predictable as they were. Objective legal scholars with integrity should be capable of ruling in ways that are not congruent with the personal political philosophies. A Democratic Presidential appointee who favors expansive government activity in health care control should be able to look at a statute designed to accomplish that purpose and still conclude, “Nope, the law mean what they want it to mean,” or “Sorry, the damn thing is unconstitutional.” Similarly, we should be able to trust a politically conservative justice to examine a statute that he objects to on principle and still conclude, “Yup, it passes the test.” Maybe all the Justices are capable of meeting this standard, but these two cases don’t suggest that. They suggest the opposite. Continue reading