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.
3. As lawyer and legal scholar David Bernstein wrote in the Washington Post, “regardless of the extent to which one believes the Court was influenced by the Justices’ policy preferences, the relevant opinions relied on standard jurisprudential arguments, not naked policy preferences.” That is to say that the arguments and reasoning in the opinions, pro and con, are legal arguments, and founded in jurisprudence, not politics.
4. John Roberts is getting excoriated by conservative commentators for his majority bolstering vote on Burwell. His approach was completely consistent with what he told Congress would be his philosophy in his confirmation hearings...and they did not oppose him then. He is not a member of a “team”; he has a job to do, and he did it.
5. Burwell, which involved an infamous passage in the ACA that was either a botched attempt at extortion to make the states establish exchanges (according to Jonathan Gruber) , a miscalculated provision that rendered the law unworkable, a piece of crummy drafting that the lazy Democratic Congress didn’t catch because they voted for the law without reading it, or some combination. What it was not was obviously one thing or the other. Pro-Obamacare journalists displayed their dishonesty by mocking the lawsuit, which was based on the words of the statute. Anti-Obamacare warriors were similarly wrong to assert that there is no doubt that Courts must always read laws to mean what they literally say even if a law’s language defeats the purpose of the law. This is a long-standing debate in jurisprudence–words or intent?—that is as old as law itself, and one that will never be settled. Either ruling would have been defensible, and the claim that this isn’t so is ignorance stoked by confirmation bias.
6. Similarly, the question of whether judges should consider the consequences of their rulings or just rule on the law as if they were legal-minded computers is eternal and similarly unresolvable. Robert Bork was rejected as a member of the Court in part because he signaled that he saw the role of a Justice in abstract terms, as a purely intellectual challenge. On the other extreme is Justice Sotomayor, who believes that judging comes equally from the heart and the brain. Her approach is more prone to abuse, but the fact remains that ruling Obamacare a dead letter at this point would have caused great confusion, hardship and chaos, as well as expense. Would it be worth all that pain to send the message that Congress can’t depend on courts to clean up the messes caused by its incompetence?
Maybe, but anyone who claims the answer is obvious or easy isn’t worth listening to.
7. The consensus among analysts seems to be that the majority opinion in the same-sex marriage decision was confusing and not as persuasive as it should have been, and that the four dissents were, to varying extents, mistaken, misguided, emotional, or bizarre. Here is a critique of Justice Thomas’s dissent; here is a critique of Roberts’ effort; and critiques of Scalia a scalding attack are everywhere, with this one, by Ann Althouse, being my favorite.
I never doubted that the Court would make the decision it did, and assumed this would happen eventually years ago. It should have been a unanimous decision, like Brown v. Board of Education. Obergefell’s force can be summed up in one of Justice Anthony Kennedy’s points, which is that marriage hasn’t changed, but society’s understanding of gays as equals and full citizens in every way has. If only his legal reasoning was as clear and convincing as his moral and ethical arguments.
8. The reactions from the stubborn and intractable foes of same-sex marriage have ranged from irresponsible to hysterical to idiotic to insane, and only time will tell how much Republicans will harm their party and the nation by crippling their ability to deal with real issues of existential consequence with an extended tantrum that makes conservatives look petty, archaic and foolish. The same is true, with perhaps lesser consequences, of the religious right and the Catholic Church.
9. Bobby Jindal is calling for the Supreme Court members to be elected: that’s in the running for most irresponsible response. So is Mike Huckabee’s pledge to defy the Court. Carly Fiorina echoed a common theme of the hysterics, that the decision stole an opportunity from Americans to organically decide the issue themselves. Americans shouldn’t be able to “decide” to withhold basic rights from other Americans without a powerful, clear, tangible and just reason, and religion cannot figure into the decision. That’s why this was a Constitutional question. Luckily, however, for these and other prominent demagogues on the gay marriage issue, this guy still laps them in the deranged reaction race.
10. Finally, Republicans are being disingenuous and hypocritical. Both decisions help the party, if it is smart enough to let them. Now it can accept that gay marriage is the law of the land, and stop making itself look silly while catering to the kind of blatant anti-gay bigots whose vile rhetorical on the internet the past few days was so sickening. Republicans also know is is they, not the Democrats, who would have been labeled the true blameworthy party, and would have reaped the rage of the public and the media if the ACA had been killed by a few misbegotten words.
They wanted to lose Burwell so they could bitch about it.
To educate yourself on both decisions, Scotusblog is the place to go.