Saturday, June 27, 2015

The Politicians At SCOTUS

A brilliant piece by Andrew McCarthy on the overt politicization of the U.S. Supreme Court. Excerpted at length below.

“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.

...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.

...If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress.
...Today’s Court has been called “post-constitutional.” That’s accurate, but it’s not complete. Its latest rulings are post-law. The SCOTUScare case, King v. Burwell, was not a constitutional case at all; it was a straightforward matter of statutory interpretation. What made it ostensibly straightforward was the law: a statute that says, “an Exchange established by the State,” cannot possibly mean “an Exchange not established by the State.” If we were a nation of laws, such a case would never make it to the highest court in the land. But we are a nation of will, the will of a determined political movement, so the law never had a chance.

Another perceptive article written by David French, (a lawyer, as is McCarthy), also highlights John Roberts' extrajudicial arrogance.

This result (ruling the other way) would have been catastrophic for Obamacare — gutting a key provision — but whether it would have been catastrophic, meaningless, or even potentially beneficial for individual Americans would have been entirely up to the elected branches of government. After all, a Supreme Court decision applying the clear language of the statute wouldn’t have mandated any particular congressional or presidential reaction. Congress would have been free to reform Obamacare, rewrite it to include federal exchanges in the subsidy scheme, or enact entirely new policies.

The Supreme Court, however, decided not to take any chances on democracy, so — in an opinion long on insurance-economics analysis and short on statutory or constitutional reasoning — it effectively changed the statute. Why? Because of the entirely speculative real-world effects. Here’s Justice Roberts:

"Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid."

Yet this is pure conjecture on Justice Roberts’s part. He does not, in fact, know whether insurance markets would be destabilized because he does not know the congressional response to a contrary ruling. He distrusts Congress, so he’s going to “fix” their mess.

He made this distrust manifest earlier in the opinion when he took a swipe at the drafters, noting that Obamacare “contains more than a few examples of inartful drafting” and that “Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’” But despite (or because of?) this mess, the Court felt the need to preserve the Obamacare they wanted to see, not the Obamacare Congress drafted and the president signed.

Contrary to the fantasy promoted by Obamacare supporters, the restriction of subsidies to exchanges established by the state and only by the state was not an oversight or a clerical error or some intern playing a joke. It was a deliberate attempt to incentivize states to set up their own exchanges, getting the federal government off the hook. Congressional Democrats were betting that the states would jump at the prospect of getting federal taxpayer money for its constituents as well as having some influence on setting health exchange rules. Well they lost that bet. Thirty-six states decided not to set up their own exchanges. That such a large majority of states would reject federal assistance might have been a surprise but it was certainly not out of the realm of possibility. The democratic process dictates...demands that Congress' shortsightedness and lack of imagination is for Congress to fix (or not to fix), not the courts.

Leave it to John Roberts explain the pernicious effect of SCOTUS intervening where it doesn't belong.

"Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today."

This from a guy who seeks to end the ongoing democratic process to reform health care.

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