Commentary on SCOTUS

I’ve mostly ignored the commentary on the Supreme Court’s blockbuster cases the past couple of days (most of it is not interesting, legally speaking) but I suppose I should offer my thoughts, having followed the court more intensely than ever before this term. (I’m serious. My pump-up mix contains the Scalia dissent from Maryland v. King.) I’ll comment in general, though you’ll see a theme.

King v. Burwell (The Obamacare subsidies case)

The outcome was predictable, of course, and I can’t get too worked up about the result. A few million people get subsidies, which is a rounding error for the bloated federal budget, so whatever; it’s not like forcing the Democrats back to the legislative table would have taken us very far. (Yay politics.)

The real disaster, and there’s really no other way to phrase this, is the precedent this sets for the future. It encourages sloppy legislation at the very least, with the understanding that courts will give you a break if you get it wrong. It will probably encourage intentionally vague drafting with the hope that a court will give you more than you could have gotten in the political process. (Lawyers will sometimes leave a contractual provision vague for the same reason. …I hear.) This has been a trend in legislative interpretation for decades, with doctrines of “saving constructions” and “constitutional avoidance” going out of their way to invalidate or otherwise restrict bad laws. (Bond v. US and Canning v. NLRB are recent examples of this.)

Also, on a personal note, I hate the idea that “established by the State” can also refer to things “not established by the State.” Words have meanings. Please stick with them.

Obergefell v. Hodges (The Same Sex Marriage case)

This wasn’t exactly a stunner, since Kennedy has been telegraphing his desire to be the one to address this issue, but I admit I was surprised by the reasoning of his majority opinion. It’s perhaps the least useful opinion written in the last few years, worse than this year’s Elonis v. US (which passed up an easy chance to pick a mental state requirement rather than saying “the lowest one isn’t it.”). While he can count on being quoted at weddings for the next few decades, the opinion offers very little in terms of legal reasoning that can be translated to any other context. Equivocating between Substantive Due Process and the Equal Protection Clause, Kennedy ultimately concludes that the constitution requires all states and territories to recognize same sex marriages mostly because it would be a good thing to do.

In many ways, Obergefell could be similar to Brown v. Board of Education, another important opinion that suffers from the same legal infirmities but has obviously had a tremendous legal impact. (I would argue, however, that all the hard work for Brown had been done by Justice Harlan’s famous dissent in Plessy v. Ferguson, as tremendous a piece of legal writing as you’ll ever see.)

The four dissents don’t offer much in terms of rebuttal, although I imagine they didn’t really bother to. Thomas and Alito do provide a decent constitutional analysis that makes me think this should have gone the other way, but this was not anyone’s finest writing hour.

I should say, I’m very happy about the outcome, and I definitely think it’s the correct social policy. I’ve voted in favor of SSM in all elections I’ve participated in, and I would have liked to see it go national this way, rather than through a very dodgy legal ruling that could undermine the rule of law and trust in the court as an institution. That said, if I were denied a right, I know I couldn’t care less about those other things if the court ruled my way. So this decision is a good thing.

That said, be worried. Burwell and Obergefell have made the Supreme Court more important than ever. Control of the court will become essential, and it’ll make presidential and senate politics even worse than it is now. (Yes, it’s possible.) It opens the doors to constitutional rulings on religious freedom or gun laws, for example, that should have been left to the states and people. In fact, some early analyses wonder if the court’s reasoning in Obergefell translates to the rights under the Second Amendment. Watch for that fight in the near future.

I’ll skip the other decisions of this term, although there have been some interesting ones, but I will note that the court has not impressed with clarity this year. I’d imagine the early October cases next year being tamer than usual to offset the acrimony of the last few weeks.

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