June 29, 2015
We have just seen the Supreme Court of the United States make a mockery of itself twice on the same day. The references are to the gay-marriage and Obamacare decisions which have created a tsunami of comment, mostly from non-lawyers who deal with the issue not the process of the decisions. Through the few remaining years of the American republic, these decisions will divide people far more than race, class or money. Each is dangerous for its reverberations. Each well defines the slippery slope.
Chief Justice Roberts' Obamacare decision rankles lawyers most but should raise the ire of all for it destroys the long history of giving words their plain meaning in a writing rather than a judge's divination of the writer's intent. All will give lip service to the aphorism that a contract means what it says. Lawyers often take issue with that when they believe the words of a writing to be uncertain, as when the words might be ambiguous. Fair enough but Roberts' tortuous twisting of the phrase: "...in an Exchange established by the State" to permit that to be an Exchange established by the IRS is preposterous. No matter how you slice it, it is still baloney. If you divorce yourself from the politics and your personal like/dislike of Obamacare, you simply cannot agree that Roberts' is right. Whatever his motivations, no language is now sacred in any law or contract where a lawyer perceives some other intent than the plain meaning of the words. Who can trust judges like Roberts? Why is not your interpretation as valid as his? He's merely a civil service employee as is your postman: all judges are.
In the gay marriage decision, Justice Kennedy decided that embedded deeply in the Constitution, heretofore unseen, was a fundamental right for homosexuals and lesbians to marry. That this right has been hidden in the 228 years of the Constitution's existence bothered Kennedy and his cohort not in the least. As a Constitutional penumbra gave rise to abortion in the Roe decision, so too has Kennedy found this right secreted somewhere in the 14th Amendment.
These decisions are profoundly political. None of the liberal Gang of Four even considered the "other side" even, for example, when they have publicly declared the opposite opinion. During her Senate confirmation hearing, liberal justice Elana Kagan unequivocably declared: "There is no federal constitutional right to same sex marriage." But, of course, now sitting for life, her true color comes out and Kagan voted for same sex marriage. They were always going to vote in support of Obama, homosexuals and lesbians but, more powerfully, they voted against Christians, Evangelicals, traditional Jews and history. Why? Because their mission is simple: power and its accretion by identity politics and the destruction of the underlying morality codes and their correlative institutions of Western civilization upon which our country was founded. They would replace those with themselves.
And thus does politics make a mockery of the court. As some justices wrote: I dissent.