Andrew C. McCarthy:
‘But this Court is not a legislature.” Chief Justice John Roberts actually published that sentence in his same-sex marriage dissent on Friday . . . a mere 24 hours after his maestro’s performance in the Supreme Court’s legislative rewrite of the Affordable Care Act — formerly known as “Obamacare,” but now etched in memory as “SCOTUScare,” thanks to Justice Antonin Scalia’s withering dissent.
Roberts’s denial that the Court legislates is astonishing in its cynicism: In saving SCOTUScare, the chief justice not only usurped Congress’s law-writing role with gusto; he claimed the powers, first, to divine legislative purpose from its contradictory expression in legislative language, and, then, to manufacture legislative ambiguity as the pretext for twisting the language to serve the contrived purpose.
It takes a Clintonian quantum of cheek to pull that off one day and, on the next, to inveigh against the very thought of it.
Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.
Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.
Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?
There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.
How can that be? Jurisprudence is complex. Supple minds, however likeminded, will often diverge, sometimes dramatically, on principles of constitutional adjudication, canons of statutory construction, murky separation-of-powers boundaries, the etymology of language, and much else. Witness, for example, the spirited debate between the Court’s two originalists, Scalia and Clarence Thomas, over a statute that, in defiance of Obama policy, treats Jerusalem as sovereign Israeli territory.
But not the Court’s lefties, not on the major cases.
And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
That’s a pretty ironic lament from Roberts
I am not surprised in the SCOTUS decision on “gay marriage”. There was far too much emotion and ambiguity, not to mention pressure, for it to go any other way. Wrong, but predictable.
The Obamacare decision, however, was a massive disappointment (not that the onerous, disastrous, destructive “law” was not overturned, but in the final realization of how far the Supreme Court has fallen) because the directives for a decision were so clear and obvious. To rule in any way other than saying that the subsidies were illegal, one has to, as Roberts and the others did, rule based on OPINION about what the idiots that crafted this “law” intended, and a labored, stretched opinion at that.
It was clear what they intended; the lure of government funding (hopefully no one would read the fine print on THAT) was clearly intended to make every state salivate and jump at the opportunity to have the federal government fund the subsidies. But, life is expected to last longer than 3 years and many states looked under the rug and found where all the trash had been swept.
The question is, when will we find what Roberts is being blackmailed with?