Tag: Supreme Court

On Judicial Incoherence


In Case of TyrannyThe primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.

I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.

Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.

The Libertarian Podcast: The Supreme Court and Gay Marriage


Still hungry for more razor-sharp constitutional analysis after yesterday’s Law TalkYou’re in luck. We’ve got a double-shot this week, as Professor Epstein also weighs in on the Supreme Court’s gay marriage decision in Obergefell v. Hodges in the new episode of The Libertarian. And the conversation here is a little different — for instance, Richard discusses whether Chief Justice Roberts has any discernible judicial philosophy and whether Rand Paul’s suggestion that we get government out of marriage altogether is practical. It’s all available by listening in below or by subscribing to The Libertarian via iTunes or your favorite podcasting app.



mrjusticetwitterAmid all the bad news on Twitter this week — especially including all the recent Supreme Court decisions — something wonderful happened just the other day. E. L. James, the author of 50 Shades of Grey, opened herself to questions.

Among the wonderful responses she received:

The Hidden Message of Same-Sex Marriage


shutterstock_219219871The four dissenters in Obergefell v. Hodges lucidly expressed the profound offense against constitutional law and representative democracy the ruling represents. In short, five lawyers, accountable to no one, chose to legislate on a profoundly consequential matter that the people were just beginning to address through democratic means. As Chief Justice Roberts wrote: “Who do we think we are?” If justices cannot resist the urge to legislate, let’s drop the pretense that constitutional law is guided by neutral principles and at least give the people the option to vote justices in (and out).

That the court has struck a blow for gay rights is true enough (and treating homosexuals with respect is long overdue). Unfortunately, the claim that this ruling also strengthens marriage is almost certainly false. To understand why is also to answer the question so often pressed as a taunt by gay marriage supporters: How can extending marriage to gays possibly affect your marriage? The answer lies in the hidden message.

The road to gay marriage began with feminism. Feminists argued that there were no important differences between the sexes. Thus, mothering and fathering were interchangeable. The word ‘parent’ became a verb. If mothers and fathers bring nothing unique or complementary to their roles, then it logically follows that two mothers or two fathers should be just as good. Talk of three or more parents misses the mark. The relevant number is one. If fathers are no different from mothers, then single women needn’t pause before embarking on “parenthood” solo – and they aren’t.

Obergefell’s Threat to Religious Liberty


As a libertarian, I support same-sex marriage. As a libertarian, I also fear the totalitarian overtones sounding from the next round of gay rights initiatives. The nature of the Supreme Court’s recent ruling on same-sex marriage in Obergeffel v. Hodges has only compounded the danger. As I note in my newest column for Defining Ideas from the Hoover Institution:

…[I]n the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

Member Post


My fellow traditionalists, you don’t get it.  SCOTUS did not disregard the obvious authority of states to define marriage requirements. From the progressive perspective, the definition of marriage remains unchanged. From that perspective, what changed is that a wrongfully excluded class of people has been granted access to that which the states continue to define. Preview […]

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Scalia’s Dissent in Lawrence vs Texas


Justice Antonin Scalia’s dissent in Lawrence v. Texas was prescient in its analysis of where we were headed in a post-Lawrence world. Likewise, the reaction to last Friday’s Obergefell decision has included warnings from both the dissenters and numerous commentators that the fallout from the case could mean serious legal challenges to religious institutions and/or the necessary discovery of a constitutional right to polygamy or prostitution.

Naturally, progressives scoff (at least on the record) at such suggestions, even as we begin to see a few commentaries pop-up that make those very arguments.

To most on the Left, these are the desperate ramblings of scare-mongers who are trying to cling to the most absurd arguments still available to them in this rapidly changing world. “Pay these claims no mind,” they say.  “This is just slippery-slope nonsense.” They usually then tack on a strawman about how conservatives think people will start marrying their dogs or some such thing.

The Court’s Assault on Democracy and States’ Rights


One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.

The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism.  The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

Why We Lost; What We Lost


ConstitutionYesterday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public relations campaign.

In a purely pragmatic sense, it’s difficult not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.

In no particular order, it:

SCOTUS and the Age of the Imperial Judiciary


In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process?  Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.

Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.

Mr. Justice Scalia Dissents


scaliaMr. Justice Scalia, dissenting:

If, even as the price 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 the fortune cookie.

A Bishop Gets it Right


From the statement by Archbishop Joseph E. Kurtz of Louisville, Kentucky, president of the U.S. Conference of Catholic Bishops:

Regardless of what a narrow majority of the Supreme Court may declare at this moment in history, the nature of the human person and marriage remains unchanged and unchangeable. Just as Roe v. Wade did not settle the question of abortion over forty years ago, Obergefell v. Hodges does not settle the question of marriage today. Neither decision is rooted in the truth, and as a result, both will eventually fail. Today the Court is wrong again. It is profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage.

The Court is indeed wrong again.

The “SCOTUScare” Travesty


shutterstock_270314624I hope to get to the SSM decision in a later post, but for now let me recap the result in yesterday’s decision in King v. Burwell: Obama 1, Rule of Law 0. I have a slightly longer analysis over at City Journal, but here’s the gist.

By a margin of 6-to-3, the Court upheld an IRS rule that supposedly implements the Affordable Care Act — Obamacare — by extending health insurance tax credits to taxpayers in states that have no health insurance exchange of their own, but rather rely on the federal healthcare.gov exchange. The problem with this rule, as the plaintiffs in King pointed out, is that it flatly contradicts the ACA. The statute clearly limits tax credits to taxpayers who use state insurance exchanges, not the federal one. A majority of the Court, therefore, simply rewrote the ACA.

This should have been an easy case. Obamacare provides two different mechanisms for establishing a health insurance exchange. A state can establish an exchange under Section 1311 of the Act. And in states that “fail” to establish an exchange, the secretary of Health and Human Services must establish an exchange under Section 1321. When discussing eligibility for those all-important tax credits, the ACA says that they are available only to taxpayers who enroll in a qualified health plan “through an Exchange established by the State.”

The Libertarian Podcast: The Obamacare Decision


If yesterday’s appearance by Richard Epstein on the Ricochet Podcast wasn’t enough for you, we’ve got a special episode of The Libertarian podcast focused entirely on the court’s ruling yesterday in the Obamacare case. We cover some different ground than the boys did on the flagship, scrutinizing the analytical methods of Chief Justice Roberts, looking at the threat to the opinions’ legitimacy coming from Justice Scalia’s dissent, and trying to place this ruling in the broader historical context of modern Supreme Court jurisprudence. You can listen in below or subscribe to The Libertarian through iTunes or your favorite podcast service.

The Happy Anachronism


Vintage Pocketwatch

It is idle to talk about preventing the wreck of Western civilization. It is already a wreck from within. That is why we can hope to do little more than snatch a fingernail of a saint from the rack or a handful of ashes from the faggots, and bury them secretly in a flowerpot against the day, ages hence, when a few men again dare to believe that there was once something else, that something else is thinkable, and need some evidence of what it was, and the fortifying knowledge that there were those who, at the great nightfall, took loving thought to preserve the tokens of hope and truth. — Whittaker Chambers

I don’t recall the exact age when my paternal grandfather stopped caring what the rest of the world thought of him, but I do remember the ebullient freedom with which he would announce whatever happened to be on his mind at any given moment, often to hilarious effect. I once brought a young lady over to meet him and at the conclusion of our visit, as we were leaving, he took her by the hand, smiled warmly and said, “You sure do talk a lot.” As with many things, his observation was absolutely spot-on, though it would have been nearly suicidal for me to agree with him at that particular moment. He winked, I winked, and she kept on talking.

Supreme Court Upholds Obamacare Subsidies


shutterstock_103670531From the Associated Press:

WASHINGTON (AP) — The Supreme Court on Thursday upheld the nationwide tax subsidies underpinning President Barack Obama’s health care overhaul, rejecting a major challenge to the landmark law in a ruling that preserves health insurance for millions of Americans.

The justices said in a 6-3 ruling that the subsidies that 8.7 million people currently receive to make insurance affordable do not depend on where they live, as opponents contended.

Bracing for King v. Burwell


Obama_signs_health_care-20100323By the end of this week, we’ll have a Supreme Court decision on King v. Burwell, the latest “challenge to Obamacare,” as the headlines put it. The first thing you need to know is that the headlines are all wrong: King v. Burwell is not a “challenge” to Obamacare, and the plaintiffs do not seek to overturn a single sentence of the Affordable Care Act. Rather, they are challenging an IRS rule that is blatantly unfaithful to the ACA (but happens to be politically expedient for the administration).

Quick background: one section of the ACA says that “States” shall establish “Exchanges” to regulate the health insurance market within their borders (§1311). Another section says — for states that “fail” to establish Exchanges — the Secretary of HHS can establish a federal Exchange (§1321). And then, in another section, the ACA says that low-income citizens can be eligible for tax credits if they purchase health insurance “through an Exchange established by the State” (§36B).

The whole point of this structure was to pressure the states into establishing exchanges. States that failed to do so would face the wrath of voters who didn’t get their subsidies. The administration and its congressional allies assumed that the states would knuckle-under and create exchanges. In the end, 36 states did not set up exchanges.

SCOTUS Notes #5 – EEOC v. Abercrombie & Fitch


l43-samantha-elauf-150226085512_big-700x525cThe fifth case in this series is a religious discrimination case brought by the federal Equal Employment Opportunity Commission (EEOC) against retail clothier Abercrombie & Fitch (A&F). The case involved a Muslim woman, Samantha Elauf, who claimed that A&F declined to hire her because she wore a headscarf for religious reasons which would have violated A&F’s dress code. SCOTUS ruled in Elauf’s favor by an 8-1 margin.

The technical question presented to SCOTUS was narrow. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire an applicant because of his or her religion. The issue was whether an employer could violate this provision without “actual knowledge” of the applicant’s religion.


No Good Options in Supreme Court’s Israel Ruling


shutterstock_95619496The Supreme Court’s recent decision in Zivotofsky v. Kerry — holding that Congress could not force the president to recognize Jerusalem as part of Israel on American passports — has occasioned much argument on behalf of both those who believe in expansive executive power on foreign affairs and those who want the legislative branch to have a greater say. As I note in my new column for Defining Ideas, however, what’s largely been overlooked is how weak the constitutional support for either side’s position is. From the piece:

Unfortunately, any fair-minded reading of the available constitutional texts quickly reveals that neither Congress nor the President has any clear textual warrant to discharge a function, issuing passports, that one of them of necessity must control for the government to function. In Zivotofsky, Justice Kennedy accepted Secretary of State Kerry’s position that the President’s power to “receive ambassadors” necessarily carried with it the power to decide which nations could send them, and thus grants the President control over the entire process of recognizing foreign nations. That textual argument is a large stretch. In his short but pithy dissent, Chief Justice Roberts quotes Alexander Hamilton, who noted that the relevant clause imposes a duty on the President that “is more a matter of dignity than of authority.”

Indeed, presumably receiving ambassadors could be subject to some bilateral treaty under which Article II, Section 2, of the Constitution does not give the President sole control over the matter. Quite the opposite, it provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”