The Supremes

June 28, 2015

One of the most secretive institutions in our republic is not the CIA or the National Security Agency, but rather the Supreme Court. The nine jurists, appointed for life, meet in private to discuss and vote on cases that were presented to them months earlier. There may be a few clerks and secretaries in the room. but they are sworn to secrecy; any leaks to the press would end their careers.

From the over the top reactions of the four justices who formed the minority in the gay marriage decision that meeting must have been one hell of a shouting match. Justice Kennedy, a Catholic conservative, wrote the majority opinion and in a closing paragraph that will be quoted for years to come talked about the dignity of married life as he enshrined marriage as a constitutional right, while the dissent of Justice Scalia, a Catholic conservative, went ballistic and personal as he lamented the end of democracy, a wholesale misreading of the constitution and the liberal elitism of the majority. Reading Scalia’s dissent reveals a sore loser and the reactions of a bully who didn’t get his way.

Gay marriage is now law but the harsh words and the personal animosity expressed by Scalia and also Chief Justice Roberts suggests that the collegial and non-political character of the high court may be in the past. Expect that the justices on both sides of the issue of gay marriage will go public in the coming days and enter the debate about this new right and the traditional concept of marriage. Even worse, conservative politicians have promised to make the Court’s decision a campaign issue. In a manner similar to the reactions of the Warren Court in the 1950s and 1960s which supported desegregation and civil rights, conservatives running for president are already talking about impeachment proceedings against the majority and a constitutional amendment to overturn the decision. Those efforts are a complete waste of time.

Whenever the Supreme Court expands rights or re-interprets the words of the Constitution and its amendments critics will condemn judicial activism, except of course when the expansion and re-interpretation suits their agenda and ideology. Judicial activism is nothing more than defining the law of the land to suit changing circumstances and mores; or as the textbooks say “making the constitution a living document.” The constitution was written over 200 years ago and for those like Justice Scalia who hold to the view that what was written by James Madison and others can never change or be updated are judicial hypocrites-witness the campaign finance rulings penned by conservatives on the Court which defined financial contributions a form of free speech. Madison, I am sure Madison turned over in his grave with that tortured logic.

Thank goodness the Supreme Court will not reconvene until October and the Congress is out of session until the fall. Most importantly, the so-called failure of democracy that Scalia crows about in his dissent fails to take notice of the fact that now over 60% of Americans support gay marriage and see the sanctioning of this union as a right.

My humble advice to Justice Scalia and his three other dissenters is to move on, get over it. Love won out.

A Mandate and a Tax

June 28, 2012

Today’s 5-4 Supreme Court decision upholding the Affordable Care Act, commonly called Obamacare,  is certainly a victory for the President as he holds on to his premier piece of domestic legislation and can claim that millions of Americans will benefit from the law. Republicans on the other hand will have to fight a rear guard action complaining about the Court’s decision and banking on negative public opinion toward the law to propel them to victory in November.

The most interesting aspect of the decision in which Chief Justice Roberts joined the four liberals on the Court to keep the Affordable Care Act on the books is that the law was upheld not on the power of Congress to regulate interstate commerce but on the federal government’s right to tax those Americans who refuse to buy insurance from private companies.

All this Tea Party, conservative, and Republican complaining about personal liberty, socialism and big government in the end was not relevant to the constitutional issue that turned the conservative Chief Justice of the Supreme Court into a traveling companion of the four liberal justices.

Of course President Obama will claim a huge political victory as he should and this decision may indeed seal the fate of Mitt Romney and his supporters who lost most of the immigration decision by the Court a few days ago and now the defeat on the Affordable Care Act. Romney will have great difficulty slamming the Chief Justice of the Supreme Court and he may be resigned to the fact that his only talking points are to nit pick at the policy with the promise that he will change it when he gains the White House. Most Americans will likely take the decision in stride and move on.

For the Republicans there is  a faint glimmer of hope in the fact that the word taxing power was used by Justice Roberts. Americans are tax increase averse and the fact that the mandate has a tax penalty may just be the opportunity the right will have to continue their fight against Obamacare. But because most Americans already have private health insurance, those who may pay a tax for refusal to join an insurance group is not large. No huge electoral bonus there.

More importantly, since the mandate does not kick in until 2014 there will not be sufficient evidence to see whether it is indeed a budget buster and job destroyer and a huge government boondoggle, so the President will be able to carry this Supreme Court victory into the election without having to dodge all those dire Republican charges.

On balance then, the Supreme Court came down on the side of  federal power, the President wins big, the Republicans have lost two major planks of their anti-Obama rhetoric, and the parts of Obamacare already in place are hugely popular with Americans. This was not a good day for Mitt Romney.