Letting freedom (and common sense) reign

The Thinker by Rodin

It was just a year ago that I blogged about the Supreme Court’s Hobby Lobby v. Sebelius decision. While not entirely unexpected due to its earlier disastrous Citizens United decision, this decision, which let a “closely held corporation” opt out of the birth control provisions of the Affordable Care Act, still felt like a kick in the groin to us progressives. June can be a very frightening month in the United States since it’s when the court’s most controversial opinions get released.

For 2015 though progressives have much to cheer about, and it’s the conservatives that are furious. This is principally because of two cases decided in the last two days that had seismic impact.

In case you just climbed out of a cave, these were King v. Burwell and Obergefell v. Hobson. In the former, a majority of the court said the Affordable Care Act could not be gutted because of the ambiguity of one section of the law that talked about state health care exchanges. In the latter, a closely divided court decided that no state could prohibit two people of any sex or gender from marrying, and that every state had to recognize same sex marriages issued in other states. In short, gay marriage was instantly legal everywhere in the United States.

If you are a progressive, this makes for a very good week indeed, but it gets even better. Almost ignored was Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The ruling said that even if a housing developer did not knowingly engage in housing bias, it could still be subject to a civil suit for such bias. Apparently, ignorance of the law by housing developers is no get out of a civil suit free card, even though the plaintiffs were hoping it was.

So while the court’s decisions last June were mostly a fright show for us progressives, this year it is mostly a fright show for conservatives. It caps an excellent week for President Obama, who also resurrected his Trans-Pacific Partnership proposal by getting Congress to agree to special rules to enact it with an up or down vote with no amendments by either chamber. For progressives though this was the sour political note of the week. The TPP, or actually the TPA, sort of rose from the dead after we thought we had put a stake through its heart two weeks ago in the House.

Include into the melee the nine people brutally murdered by Dylann Roof last Wednesday at Charleston, South Carolina’s historically black Emanuel AME church in what but only a few of the craziest conservatives agree was a racist act of domestic terrorism. The tragic and horrifying event though had a special power in a way that its perpetrator did not intend. Just a few months after the 150th anniversary of the end of the Civil War, the South seems to suddenly want to actually end it, just in spirit this time. The Confederate flag, even in the South, is no longer cool. Once South Carolina governor Nikki Haley spoke in favor of the removal of the Confederate flag from its special flag post at the state’s capitol, Republican politicians were practically jumping on top of each other trying to agree that Confederate flags everywhere needed to go to museums and stay there. States across the South are anxiously revisiting their previous pride about the Confederate States of America.

Despite Republicans controlling a majority of the state houses and governorships and the U.S. congress, their agenda is being beaten back. It’s not supposed to be this way and in fact in many ways it’s not happening. It’s largely not happening with their increasingly onerous restrictions on abortion rights, or voting rights, or on many other issues. But on some of the issues that animate them the most, like gay marriage and Obamacare, they got bitch-slapped something bad this week. They are furious but largely impotent. If you see someone foaming at the mouth these last few days, it’s probably a Republican.

Whereas progressives like me are kind of stunned by it all, but particularly on the court’s ruling on gay marriage. It’s not its decision that surprised me, but I am stunned by how quickly the nation and the courts evolved on the issue. I wrote in this post back in 2008 that I expected it would take a few more decades for gay marriage to be legal in all fifty states. In the court’s 5-4 decision today, it’s now legal in every state, just seven years later! To put this in perspective, it was just 11 years ago that Massachusetts became the first state to legalize gay marriage. This is a stunningly fast change. Justice Kennedy, writing for the majority in Obergefell v. Hobson, was almost poetic in his writing:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The 14th amendment to the U.S. constitution was the legal rationalization for the decision. It is also known as the “equal protection” amendment. Its citing was not a surprise, but using it as a justification was poetic as well. Here’s why: the 14th amendment was passed after the Civil War to protect the rights of blacks who were no longer slaves. The amendment can be thought of as the “equal means equal” amendment. The Supreme Court simply stated that its ruling was constitutional because otherwise gay, lesbian and transgendered individuals would be denied privileges available to others, which is both the intent and spirit of the 14th amendment. Progressives can feel giddy because had there been no Civil War it’s unlikely that this amendment would have been introduced at all, so it’s quite possible this ruling would never have been enacted. There probably would have been no constitutional rationalization for this decision otherwise, and conservatives would have won the day. In short, you can tie the court’s ruling on gay marriage as a very belated response to the insurrection of the southern states and the apartheid principles that Dylann Roof perpetrated last week.

In the case of King v. Burwell, the Supremes essentially undercut the premise of the self-proclaimed constitutional conservatives on the court. Constitutional conservatives believe that every law must be judged against the original intent of the constitution and it means exactly what it says and nothing more. No less that Chief Justice Roberts, who wrote the majority opinion, explicitly undercut that rationalization. He wrote:

The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well.

Roberts and a majority of the court affirmed, as it has hundreds of times throughout its history, that when a portion of a law erroneously works against its clear intent, then the intent of law is what prevails. It was a ruling that faithfully reflected the will of Congress when the ACA was written, and a majority of the court thus held to the fidelity of the law.

For us progressives, this has been a week of largely good news. It is good news that gays, lesbians and the transgendered have the same marriage rights as heterosexuals. Equal now really means equal. We see it as an expansion of freedom. Strangely, conservatives only want to expand freedoms for those who look and act a lot like they do. Anything else is the overreaching hand of big government at work. Similarly, in the case of the interpretation of the Affordable Care Act, conservatives think that every law should be interpreted literally, whereas the Supreme Court reaffirmed that its rulings should be faithful to the law’s clear intent. These rulings were victories for common sense and for the spirit of the law and constitution.

What goes around though will come around. These court decisions seem to ping between favoring liberal and conservative wings, usually based on Justice Kennedy’s interpretations of the law and the constitution. So it wouldn’t surprise me if in a year from now I will be railing against the court again for their ill-informed judgments. For now though it’s pop the champagne time. Obergefell v. Hobson in particular is a landmark opinion of a scope and breadth rarely seen these days, and whose impact will be strongly felt for decades to come.

News alert: Supreme Court decisions are inherently political

The Thinker by Rodin

Did you watch the Senate Judiciary Committee hearings on the nomination of Elena Kagan to be the newest Supreme Court justice? If you did, you may well have experienced déjà vu.

About the only thing that changes in these hearing is the nominee. The questions are all eerily familiar, as are most of the faces on the committee, which do not change a lot. Senators ask lots of probing questions that the nominee will tend to dodge. Most of them will be about controversial issues like gun control and abortion. The president’s party will generally throw softballs and be effusive with their praise for the nominee. The nominee will dodge most questions saying of course they cannot say how they will rule on hypothetical future cases. They will say that they will weigh the issues that come before them fair and impartially. Then, the Senators will generally vote the way their party leaders want them to vote because they are not jurists, they are politicians. This time around, since every Republican senator is scared that a vote for Kagan will inflame the Tea Party, only one or two Republicans will be brave enough to break ranks. The only real question is whether there is something about the nominee controversial enough for the opposition to attempt a filibuster.

The president and his staff are painfully aware of all this, which is why finding the right nominee is important. Diane Wood, for example, was probably crossed off because she was just a tad too liberal to escape a Republican filibuster. Kagan though was unusual because she had never been a judge. Her lack of a record was something of an asset. Senators were left to fume about minor actions she took while dean of the Harvard Law School. With Democrats in the majority and little in Kagan’s record to get bent out of shape over, Kagan seems likely to be confirmed by the Senate in about a month. But that’s okay. Obama was replacing a liberal justice with another liberal justice. Overall, the balance of power on the court was unlikely to change, with conservatives on the court tending to win most decisions. Expect a real brouhaha if a conservative justice retires and we have a liberal president, or visa versa.

What really annoys me is the elaborate pretense from both senators and the nominee that they will be impartial. What else is the nominee going to say, really? If a nominee were honest, they would admit that virtually all of the Supreme Court’s decisions are political. Senators claim they want impartiality when it is clear they really want a judge that will rule in a partisan matter aligned with their political ideology. When Chief Justice Roberts underwent his confirmation hearings, he went so far as to say that he saw the role of the justice to look at the law and the particulars of the case and then rule whether the case amounted to a ball or a strike. He seemed to be implying that any case could be rendered as either black or white.

As if it is ever that simple at the level of cases the Supreme Court deals with. If a case were easy to decide, it would not have gone through district and appellate courts first, nor would the Supreme Court have bothered to even hear the case. Any case the court agrees to take is going to be inherently squishy and political in nature. While everyone seems to understand this truth, no one will acknowledge it.

The reason you know I speak the truth is that everyone is deeply concerned about the nominee’s record of dealing with controversial or squishy cases. Why? Because these cases help disclose their tendency to apply their political ideology to actual cases. In Kagan’s case, along with many other nominees, their political ideology is hardly a secret. No president is going to nominate someone they think will be at odds with their ideology. Sometimes they don’t get the nominee they expected. Both recently retired justices Stevens and Souter were nominated by Republican presidents, but turned more liberal as they aged. Subsequent nominees have been much more ideological, as presidents worked hard to make sure their ideology rippled through the court long after their terms expired.

The result is a court that now renders a lot of near split decisions, generally on the most controversial political cases. Particularly with controversial cases, it’s not hard to figure out how justices will rule. While the rationale will differ, they will generally line up along their political ideology. Justice Kennedy is usually the only swing vote, and lately he has been trending more conservative. He may be the only impartial justice on the court.

Of course, justices will be influenced at least to some extent based on their feelings and the way they were raised. When there is ambiguity and you have to make a decision, where else will you turn? At the Supreme Court’s level, where cases are inherently squishy, of course those factors are going to weigh more heavily than they will at a state or county court. In the lower courts, the judge is often required to interpret the law a certain way. At the level of the Supreme Court, as much as some on the court would say otherwise, they make the law by deciding the case.

The Second Amendment, for example, was genuinely ambiguous. Did it mean that everyone has a right to own a gun, or did it mean that people had the right to own a gun only because they might need to help support a militia someday? The Supreme Court in a number of recent rulings seems to be saying that the part of the amendment dealing with militias is interesting background history but irrelevant. Everyone has the right to own a gun. The court parsed the arguments and history of the Second Amendment and there was evidence of original intent in both directions. The court, based on its ideological leanings, made the political decision to interpret the amendment (yes) liberally. It could have said it was so ambiguous that Congress needed to pass a clarifying law. It did not.

Often the Supreme Court will, by the narrowest of margins, overturn a ruling by an appeals court that was also decided on the narrowest of margins. That so many different “impartial” judges can see these murky cases in so many different ways and come to so many different conclusions just goes to prove that Robert’s “balls and strikes” argument is hollow.

Everyone understands the reality, which is why the president is so careful not just with Supreme Court picks but also with picks for district and appellate courts. The more judges he can get confirmed that align with his ideology, the better the odds are that over time these jurists will issue rulings that also align with his ideology. This is also why senators, through the use of dubious tactics like secret holds, try to bottle up nominees for lower court judges that are the least bit controversial.

At the federal level, all but the lowest courts decide cases that are inherently political. That’s the way it has been since the birth of our republic and the way it will be while our country exists.

It would be nice if we would stop pretending it is otherwise.