Our Activist Supreme Court

An interesting spectacle happens in the US at the end of June each year. The Supreme Court winds up its business for the summer by announcing their blockbuster decisions on a number of controversial issues.

This year was no exception as the nation breathlessly awaited news on the fate of the Affordable Care Act (better known as Obamacare) along with same sex marriage.

Ever since the passage of Obamacare, it has been the sworn duty of every Republican to do whatever they could to either repeal or at the least disable it. If the decision was unfavorable, tens of millions of Americans could lose the vital health insurance they had finally gotten under Obamacare.

But truth be told, there were a number of Republicans who were also worried about Obamacare going down. Why? It was clearly a case of needing to be careful what they wish for.

Despite all of the Republican rhetoric about replacing Obamacare, they have never offered a creditable alternative. If the Court had struck down Obamacare, the Republicans would have had to frantically scramble to instantly come up with a plan that would prevent the disaster of many millions losing their health insurance.

In a previous trial by fire for Obamacare in the Court, Chief Justice Roberts surprised everybody by siding with the liberal Justices to save Obamacare and avoid the catastrophe the Republicans would have had to deal with.

This year's decision in favor of Obamacare has provided assurances that it is most likely here to stay. But just as important to the Republicans, they can now resume the anti-Obamacare rhetoric that their partisans want to hear without having to worry about what they would have to come up with as a replacement.

But the most anxious wait was for the decision that could legalize same sex marriage nationwide.  While more and more states (not to mention countries) were legalizing same sex marriage, there was always the concern about whether the marriage would be recognized in the states that didn't allow such marriages.

Supreme Court decisions are normally based on interpretations of the Constitution along with some deference to prior decisions on similar cases.

But after watching the Court in action, the Constitution is beginning to look more and more like an inkblot test in that the Justices all looking at the same document can see things differently - sometimes radically so.

We can look at previous decisions that can provide some precedence to help make a decision. An obvious place to look is back in the 60s when those contemplating interracial marriages ran into the same problem that those seeking same sex marriage have had with it being illegal in some states.

As what sometimes happens in instances like this, someone decides to fight what they see as an unjust law by taking their case to court. And sometimes, it can make it to the Supreme Court. The result was a case known as Loving v. Virginia  where the Court decided unanimously that laws prohibiting interracial marriage are unconstitutional.

But in the recent Supreme Court same sex case, Obergefell v. Hodges it was decided that laws prohibiting same sex marriage were also unconstitutional. But instead of the unanimous decision in Loving, it was by a bitterly divided 5-4 result which has been typical of this Court. In fact, the dissenting remarks had more than a few personal attacks. 

The dissenting opinions can be summed up by the assertion that there is nothing in the Constitution that implies that same sex marriage is a right. But this is a specious argument.

While of course there is no specific reference to same sex marriage in the Construction, the aforementioned Loving decision provides an excellent precedent to work with.

The Loving decision says that based on the 14th Amendment, marriage is a right – even for interracial couples. In the recent Obergefell decision, the majority said that based on the 14th Amendment, marriage is also a right for same sex couples. In essence, the first decision serves as a precedent for the second one.

It has been mentioned elsewhere but I will repeat it here. It was the Loving decision that protected the rights of interracial couples – like Justice Thomas and his wife. But Justice Thomas refused to extend these same rights to the same sex couples which suggests that conforming to conservative ideology is more important to Justice Thomas than fairness.

The Roberts Court has been viewed by many as the most activist in some time. In my view, the conservatives have been more guilty having given us Citizens United which has seriously compromised our election process with unlimited contributions along with gutting the Voting Rights Act which is allowing more discrimination against minority voters.

With today’s polarized political climate, we can only expect this giant tug of war between the Court's liberal and conservative factions to get even worse!

It is expected that the 2016 presidential winner will be able to appoint several Court replacements with some of the Justices approaching 80 years old. Of all the reasons to pick one presidential candidate over another, this may well be the most important one!