"If, even as the price to to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity' I would hide my head in a bag. 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." Obergefell v. Hodges, Scalia, J, dissenting.footnote 22, (2015).
A brief examination. In a case decided on Thursday, Chief Justice John Roberts, writing for the Court, announced that the following sentence found in the Affordable Care Act (Ocare): "an Exchange established by the State" actually could be read as saying "by the State and Federal Government." By inserting this additional phrase the Court was able to amend Ocare in such a way as to breathe life into it for yet another term.
The following day, without apparent shame, the CJ wrote:
"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." Obergefell v. Hodges, Roberts, CJ, dissenting. (2015), as the Court found a liberty interest in the Constitution supporting gay marriage.
To a casual observer, it might seem that the Chief Justice entertains no real underlying interperative principles as he veers drunkenly (I mean that figuratively, of course) from one side of an argument to the other. But, as has been muttered ruefully by my poor, long-suffering wife, I am not a casual observer. Let me share my analysis.
Roberts has lost his mind.
No, really. Our Constitution, as he pointed out in Obergefell, grants no legislative powers whatsoever to the Court. While certain principles of statutory interpretation allow a court to cure confusing construction, it does not have the power to re-write a law that was carefully drafted to mean precisely what it said. Okay, that's kind of a mouthful. If a legislature writes a law that is unclear (as is a fairly common occurrence), a court can save it. They do this by giving it a reasonable re-reading. So far, so good.
The idiot who helped draft Ocare (the guy who called us stupid, by the way) intentionally included in the law the language about State Exchanges (allowing a tax credit for them, but not Federal exchanges) to coerce States to establish insurance exchanges. Go ask him. But, some states refused to take the bait and policies that would be affordable under the tax credit scheme were suddenly unattractively expensive. Whoops.
Never fear, Johnny Boy and his posse of re-writers to the rescue. Voila! In total. absolute, incredible violation of everything the Founders agreed upon, the Supreme Court of the United States announced a new law. It had not begun its stilted life in the House (because, as the CJ had legislated a couple of years ago, this law contains a tax, not the penalty in the original), had not been passed by either - let alone both - chambers of Congress and had never been signed into law by the President. Not that Mr. O wouldn't have signed the crap out of this bitch.
Okay. So now we get to same-sex marriage. Trigger warning - I totally agree with Justice Kennedy's opinion. Okay, have your WTF moment. I'll wait...
You're back? Dude, here's the thing. In Obergefell they were deciding whether a right exists, not trying to decide what a statute meant. The Founders were reluctant to include the Bill of Rights in the Constitution. Why, you ask? Because, when you make a list it seems like you are making a whole list. And, in the law, a list that includes some things (and doesn't say "among these...") is interpreted to be inclusive - that is, it has everything in it that applies. Many of the men who wrote the Constitution said "Seriously?! Who would possibly think that?"
Antonin Gregory Scalia of Trenton, NJ. He is an associate justice of the Supreme Court. He believes that if a right is not found in the Constitution then Congress may determine if it exists. Well, what could possibly go wrong with that idea?
Ultimately, it is the right of a free adult to, as Tony K wrote, order their lives in the manner of their own choosing. Most of us with healthy, rewarding marriages take for granted our right to seek out our partner, develop our relationship and build our lives together. The fact that the person who fits these perimeters is the same gender as us should be of no concern to the government. To decide otherwise is to deprive free men and women of a liberty interest to which they are entitled not by the Constitution, but, as Mr. TJ wrote so many years ago, by the Creator.
You see, inalienable rights are not a creature of government. You have them, I have them... Everyone has them no matter what the Supreme Court says. The right to life, liberty and the pursuit of happiness is, well...
"To secure these rights, governments are instituted" among free people. This week, the Supreme's decided that a right that goes to the very heart of sharing the gift of life and love with another human being belongs to everyone. That seems not just sensible, but well within the authority of the Supreme Court to decide.
So, how to reconcile the two decisions? Ready for this? On the one hand, they acted without any moral or legal authority at all. They blatantly re-wrote a crappy, poorly-drafted statute passed in defiance of the rules of Congress (with Roberts admitting, and the others joining this sentiment, that it was crappy and passed in violation of the rules of Congress) without the slightest shred of authority from the Constitution. The next day, they did a gutsy, elegant thing in the name of liberty. The first was an exercise in statutory interpretation (that they got badly wrong). The second was a question of whether the liberty to marry free from governmental interference is recognized under the Constitution. That one they got beautifully right.
So, why did I include the above quote from Scalia? I love the man. When he is writing in a snit, it is pure, unadulterated law porn. I can't wait until the First Monday in October!