The U.S. Supreme Court decided, rightly, in my opinion, that the statutory construction given the Affordable Care Act by the Obama Administration is consistent with the overall intent, if not the letter, of the act. The Court also decided, wrongly, in my opinion, that homosexuals have a constitutional right to marry. Both decisions were quite political—good politics in the first and bad in the second. But I think that both decisions will have an overall favorable effect on the U.S.
The Affordable Care Act decision, aka King v. Burwell, was really a no-brainer, unless you feel that the Supreme Court should effectively appoint itself as proofreader to Congress and the 50 state legislatures. If one is inclined to schadenfreude, as I am, it is both interesting and amusing to see the deep frustration on the right over the Court’s failure to overturn what is essentially the Mitt Romney Health Care Act. It’s not “SCOTUScare,” Justice Scalia, it’s MittCare! Georgetown law professor Randy Barnett, writing at Eugene Volkh’s Volkh’s Conspiracy, usually the (highly) intelligent voice of libertarian legalism, accuses Jeb Bush of “insanity” (his word, not mine) for promising to appoint judges who will not “legislate from the bench.” Hey, Jeb! We need judges who will legislate from the bench! How else are we going to win?
Since waay back in 1992, when Bill Clinton promised to enact a health care program offering universal coverage, the right wing’s position has been “the better, the worse.” The better the program is for the country, the worse it is for the Party. During the Obama Administration, Republicans have tried to wreck, not simply health care, but the country as well. Twenty-three years of the politics of destruction deserved to have its ass kicked.
Roberts could not have controlled the Affordable Health Care decision, but by joining with the majority and writing the opinion himself, he helped put a stake through the notion that courts can and should function as censors, tossing out laws on the basis of minor infelicities—“Now, Congress, you used a singular subject with a plural verb, so I don’t know what you mean!” The sort of nit-picking challenges that the Affordable Care Act provoked probably won’t be repeated in the future. And that’s definitely a good thing.
As for the gay marriage decision, Obergefell v.Hodges, well, the right of gays to marry, as well as their right to fuck, is something that the Court just pulled out of its ass, appropriately enough. For a thousand years, It had been the explicit assumption of the Common Law, and the statutes reforming that law, that same sex sexual intercourse was wrong and could be made subject to virtually unrestricted criminal penalty. Reversal of that assumption was the clearly the province of the U.S. Congress and the legislatures of the several states.
Well, that’s the theory. In practice, the U.S. Congress and the legislatures of the several states really don’t have much enthusiasm for discussing such things as anal sex—not in public anyway. Legislators don’t like making tough decisions. “Let the judges handle that one. That’s what they’re for! They don’t have to get re-elected!”
During the glory days of the Warren Court, judges had a field day with that kind of thinking, making all kinds of decisions that legislators didn’t want to make. It was great fun, and a lot of great things got done, but it’s always possible to carry a good thing too far, which is why we got Roe v. Wade, a truly terrible decision.
Will the gay marriage decision be equally disruptive? I don’t think so. The Court was way ahead of the curve with Roe v. Wade. With gay marriage, not so much. And whatever you want to say about gay marriage, it isn’t murder.
King v. Burwell was and is good law and good politics. Obergefell v. Hodges is pretty shabby law and very shabby politics, the coastal elites wiping the flyover states’ noses for them. But I think the Court will get away with it, even though it shouldn’t.
UPDATE
Nick Gillespie is tweeting that I’m predicting "civil strife” over gay marriage. Well, not really, unless by “civil strife” you mean lots of arguing and some rear-guard legal quibbling from the red states. Ultimately, gay marriage is here to stay.
