Last week’s back-to-back rulings on Obamacare and same-sex marriage shows just how far we have come from the government established by our founding fathers. The checks and balances that have held this republic together for more than 200 years are gone!
The Constitution is no longer the instrument by which the legitimacy of all laws are judged. It has been replaced by a crystal ball, in some cases, a justice’s personal opinion.
Justices Elena Kagan and Ruth Bader Ginsburg have publicly displayed their support for gay marriage. Both have performed same-sex marriage ceremonies while this issue was making its way through the courts, yet ignored judicial precedent by failing to recuse themselves from Obergefell v. Hodges.
This court ruled that the very words in the laws that come under review now can be changed or simply ignored at the whim of a justice. I offer the opinion of Chief Justice John Roberts in the ruling that upheld Obamacare.
The issue before the court was a passage that clearly stated that tax credits are authorized for those who buy insurance on marketplaces that are “established by the state.” When the law was written, the Obama team thought that this would insure that the states would cooperate in spreading our hard-earned tax dollars around. When most states rejected this subtle form of coercion, the Obama team switched horses. They argued that the words in the law didn’t say what they really meant to say and that people in those states “had a right” to the subsidies anyway.
It is hard to believe that it took nine Ivey League-trained lawyers on the high court months to decide this case when anyone with a fifth-grade education could read and understand the simple language in the law. However, six of those nine justices actually decided that the words in that law were unimportant.
Justice Scalia, in his dissent, rightfully chastised his colleagues and accused them of resorting to “somersaults of statutory interpretation” to find a way to defend this law. In other words, they grabbed their crystal balls and tried to decide what the “intent” of Congress would have been if it had known that the majority of our states would refuse to set up those exchanges.
In the 5-4 gay marriage decision, the majority looked into those crystal balls again to find a new right lurking around in, if not the words, the minds of those who wrote our founding document.
The majority opinion 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.”
Scalia rightfully chastised his colleagues by saying if he joined an opinion that began with those words he “would hide my head in a bag,” comparing these words to the “mystical aphorisms of the fortune cookie”
Crystal ball, fortune cookie or magic hat, the majority resorted to a form of hocus-pocus to try to justify this ruling. Clearly, those five justices have no respect for our founding document or those who ratified the 14th Amendment on which they awkwardly staked their major claim.
In 1868, when the 14th Amendment was ratified, as Justice Scalia pointed out, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” There were other legal partnership to be sure, but the institution of marriage always has been between a man and a woman.
Historically marriage was a private or religious ritual. The government had no part in it. The primary reason for the state to be involved was to put a hedge of protection around a married couple in order to shield them from the tax burden while raising their families.
Now that the courts have removed that hedge of protection there is no longer a need for the state to be involved in the process at all.
However, whether you favor the outcome of these decisions are not, the way the Supreme Court arrived at them should leave everyone shaking in their boots. If the Constitution and the very words in a law can be ignored by the highest court in our land, the foundations of this government have been removed.
In one short week, the Supreme Court, in effect, “jumped the shark” in handing down these opinions, but does anyone really care? My guess is that more people watched that infamous “Happy Days” episode back in 1977 than, today, can name the justices on the Supreme Court, much less explain their function.
The price of liberty really is eternal vigilance.