Land­mark rul­ings see US court lurch to left

The China Post - - COMMENTARY - BY CHAN­TAL VALERY

With four jus­tices ap­pointed by Demo­cratic pres­i­dents and five by Repub­li­can lead­ers, the U.S. Supreme Court is gen­er­ally per­ceived as be­ing weighted in fa­vor of con­ser­va­tives.

But af­ter two his­toric rul­ings in a week sup­port­ing pro­gres­sive causes — le­gal­iz­ing gay mar­riage across Amer­ica and up­hold­ing Pres­i­dent Barack Obama’s health care over­haul — the con­ser­va­tives are lash­ing out.

They are slam­ming what they see as a bla­tant dis­re­gard of the law in fa­vor of a win in the court of public opin­ion.

Ul­tra- con­ser­va­tive As­so­ciate Jus­tice An­tonin Scalia called the 5-4 rul­ing in fa­vor of le­gal­iz­ing gay mar­riage na­tion­wide a “ju­di­cial putsch” that was “lack­ing even a thin ve­neer of law.”

“Just who do we think we are?” asked Chief Jus­tice John Roberts, who also op­posed the gay mar­riage rul­ing.

He said the rul­ing had “noth­ing to do with” the Con­sti­tu­tion and blasted the de­ci­sion as “an act of will, not le­gal judg­ment.”

Scalia also lam­basted his col­leagues for vot­ing 6-3 to up­hold “Oba­macare,” which has ex­tended health in­sur­ance to mil­lions of Amer­i­cans.

Con­ser­va­tives say Oba­macare rep­re­sents un­con­sti­tu­tional gov­ern­ment in­tru­sion into the lives of pri­vate cit­i­zens.

“To­day’s op in ion changes the usual rules of statu­tory in­ter­pre­ta­tion for the sake of the Af­ford­able Care Act,” Scalia wrote.

“We should start call­ing this law SCOTUS­care,” he added, us­ing the acro­nym for the Supreme Court.

‘Ju­di­cial ac­tivism’

Aside from the health care and gay mar­riage rul­ings, the court also voted in the past week to up­hold a key tool used to fight hous­ing dis­crim­i­na­tion — another big win for the Obama ad­min­is­tra­tion.

In the past, other land­mark Supreme Court rul­ings have ush­ered in the le­gal­iza­tion of abor­tion, the end of racial seg­re­ga­tion in schools and the au­tho­riza­tion of mixed-race mar­riages.

But this week’s de­ci­sions left some ac­cus­ing the court of sid­ing with public opin­ion — and not the Con­sti­tu­tion.

Ryan An­der­son, a re­search fel­low at the con­ser­va­tive Her­itage Foun­da­tion, called the gay mar­riage rul­ing “per­haps as clear of an ex­am­ple of ju­di­cial ac­tivism as any we have seen in re­cent years — or are likely (hope­fully) to see in the fu­ture.”

“The ma­jor­ity of the Court sim­ply re­placed the peo­ple’s opin­ion about what mar­riage is with its own,” he said.

In each of this week’s three main big rul­ings, As­so­ciate Jus- tice An­thony Kennedy, who was ap­pointed in the 1980s un­der the con­ser­va­tive Ron­ald Rea­gan but is con­sid­ered mod­er­ate, sided with his pro­gres­sive coun­ter­parts.

Roberts, the chief jus­tice, also added his vote to the health care rul­ing, per­haps to pro­tect the court from ac­cu­sa­tions it voted along po­lit­i­cal lines.

Con­sti­tu­tion ‘pli­able, long

last­ing guide’

“This is not about a ‘con­ser­va­tive’ or ‘lib­eral’ court,” said Lisa Lin­sky, a part­ner at the McDer­mott Will & Emery law firm.

“This is about the high­est court in the land be­ing cog­nizant of the world around it and the fun­da­men­tal prin­ci­ples and pro­tec­tions that are em­bed­ded in our con­sti­tu­tion,” Lin­sky said.

“The found­ing fathers of this coun­try cre­ated the con­sti­tu­tion to be a pli­able, long-last­ing guide for liv­ing life in a civ­i­lized so­ci­ety,” she added.

These cases “im­pacted real peo­ple in pro­found and far-reach­ing ways,” she told AFP, not­ing that “any other re­sult would have caused chaos.”

If the Oba­macare rul­ing had gone the other way, mil­lions of peo­ple could have been left with­out health in­sur­ance. “Their at­ten­tion in that case to the eco­nomic re­al­i­ties of the health in­sur­ance mar­ket was part of their statu­tory in­ter­pre­ta­tion, not some freefloat­ing anal­y­sis of what would be good pol­icy,” said David Cruz, an ex­pert from the Univer­sity of South­ern Cal­i­for­nia Gould School of Law.

In the gay mar­riage rul­ing, Kennedy wrote that same- sex cou­ples should not be de­nied the “con­stel­la­tion of ben­e­fits” af­forded mar­ried part­ners, such as tax and in­her­i­tance rights.

Mary Mar­garet Pen­rose, a law pro­fes­sor at Texas A&M Univer­sity, noted that “the re­ceipt of these ben­e­fits tra­di­tion­ally are mat­ters of pol­icy and leg­is­la­tion, not con­sti­tu­tional man­date.”

Steve San­ders, who teaches con­sti­tu­tional lit­i­ga­tion at the In­di­ana Univer­sity Mau­rer School of Law, said the court should be ex­pected to show some flex­i­bil­ity.

“The point is not that we should make law by opin­ion poll,” he said.

“The point is that, un­der our Con­sti­tu­tion, we ex­pect courts to step in and act when a mi­nor­ity group is be­ing de­nied a fun­da­men­tal right based on the tran­sient pas­sions and dis­cred­ited mo­tives of a po­lit­i­cal ma­jor­ity.”

Sta­tis­tics show that dur­ing the cur­rent Supreme Court ses­sion, which is set to end Mon­day, the jus­tices have taken more left­lean­ing de­ci­sions.

Ac­cord­ing to a New York Times anal­y­sis, about 56 per­cent of rul­ings by the court were con­sid­ered pro­gres­sive.

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