The Supreme Court Rules for Politics

Late last month, the Supreme Court handed down two huge decisions in the cases of Obergfell v. Hodges and King v. Burwell , respectively legalizing gay marriage nationwide and saving the Affordable Care Act. But in each case, the reasoning behind the majority’s decision was highly questionable. Both cases represented a continuation of a disturbing trend amongst the court’s left-leaning justices: a preference for political, rather than legal, reasoning.

In Obergfell, the court made the right choice for the wrong reasons. Justice Kennedy’s majority opinion has garnered much praise for its poetic nature. While Kennedy’s decision may be wonderful to read from a literary perspective, it is perplexing from a legal one. Law professor Ilya Somin noted in the Washington Post that Kennedy’s opinion “is based on dubious and incoherent logic … [it] doesn’t clearly endorse any of the various arguments previously advanced for a right to same-sex marriage, even as it to some degree nods at all of them.” Chief Justice Roberts put it even more bluntly in his dissent, arguing that, “the majority’s argument is that the Due Process Clause gives same-sex couples a right to marry because it will be good for them and for society.”  While it is certainly true that legalizing same-sex marriage is good for society, that fact has no bearing on its constitutionality. Kennedy’s decision to not make a stronger constitutional argument is a strange one, considering that there is a very strong one to be made.

But Kennedy didn’t seem interested in a more thought-out argument; he, along with the concurring justices, was more interested in the outcome than in the basis for the outcome. The Equal Protection argument for gay marriage is a particularly strong one, although strangely Kennedy did not seem convinced by it. Perhaps when Justice Kennedy reviewed this argument and others for same-sex marriage, he found none of them convincing. So he concocted a vague, shaky argument of his own and instead of making the ruling that he thought was constitutionally sound, he made a ruling that he felt was morally sound. But as a Justice of the Supreme Court, upholding his personal morality is not his job. His job is to uphold the Constitution and in this case, while he ultimately came to the correct conclusion that gay marriage is constitutional, he did so for the wrong reasons.

Despite its shaky reasoning, the court at least made the right decision in Obergfell. The same cannot be said of King, which dealt with a question concerning the subsidies created by the Affordable Care Act that are vital to the law’s existence. The question was whether or not people who lived in states that did not set up their own healthcare exchanges were still eligible for subsidies. The court ruled that they were in a 6-3 decision. In a scathing dissent, Justice Scalia called the decision “interpretive jiggery-pokery” and “pure applesauce,” terms that seem altogether too kind for a decision that was essentially hot garbage. Justice Roberts’s majority opinion is a master class in sophistry and wishful thinking. Roberts recognized that ruling against the government would likely have meant the end of Obamacare due to the high number of states that did not set up exchanges. In his mind, the authors of the bill could clearly not have intended for this to be the case, so it must be that they meant for everyone to be eligible for subsidies.

Roberts and the concurring justices can’t seem to fathom that the government may have actually intended for those in states without exchanges to be ineligible for subsidies. Obamacare architect Jonathan Gruber has said as much on multiple occasions, revealing that the government intended to effectively force states to create exchanges so as not to deprive their citizens of the subsidies. The actual text of the law supports this argument. A “qualified individual” is defined as someone who “resides in the State that established the exchange.” Roberts tries to argue that this sentence should not be taken with “its most natural meaning” without providing any legitimate basis for doing so. The majority’s decision rested on other similarly bizarre interpretations, notably that the word “State” was used to refer to both the State and the Federal governments despite the text of the law constantly distinguishing between the two. According to Roberts, the distinction only matters when it is to the benefit of the government.

The truth is that the authors of the law did not foresee the consequences of states not setting up exchanges. The authors felt certain that states would set up exchanges and neglected to provide a failsafe in case the states did not. Were the court functioning as it should, the government would have lost this case and the ACA would be no more. The court should make its ruling based on what the law means, not what they want it to mean. Thus, the proper ruling would have been that only those in states that set up exchanges are eligible for subsidies. But to borrow again from Justice Scalia, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

The court wanted legalized gay marriage to become the law of the land and the ACA to remain intact regardless of what the Constitution said. Many people in politics, particularly on the left, believe in a “living Constitution,” the idea that the Constitution is a malleable document whose meaning changes over time. While this may have been how the Constitution was interpreted in the past, it is still a fundamentally wrong way to interpret the Constitution. The Constitution does not mean what one wants it to mean; it is a strict set of rules for what the government can and cannot do. It is meant to ensure that the people are always protected, the minority is never quashed, and the government is never too powerful. It was not meant to change except by amendment. But this manner of interpretation can be unsatisfying at times. The Constitution, after all, was a document written in the 1700s. Sometimes it is backwards and sometimes it stands in the way of societal progress and thus following the original intent of the document may in some cases yield undesirable results. But on the whole, it is far better for this nation if the Constitution is respected and followed, for if we cast it aside when we don’t like its outcomes, we defeat the purpose of having a constitution.