By Andrew C. McCarthy
Saturday, June 27, 2015
‘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.
It is simply accepted that these justices are not there
to judge. They are there to vote. They get to the desired outcome the same way
disparate-impact voodoo always manages to get to discrimination: Start at the
end and work backwards. Guiding precedents are for the quaint business of
administering justice. In the social justice business, the road never before
traveled will do if one less traveled is unavailable.
But there’s a problem. Once it has become a given that a
critical mass of the Supreme Court is no longer expected, much less obliged, to
do law, then the Court is no longer a legal institution. It is a political
institution.
That is where we are. We should thus drop the pretense
that the Court is a tribunal worthy of the protections our system designed for
a non-political entity — life-tenure, insulation from elections, and the veil
of secrecy that shrouds judicial deliberations.
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.
If, for old times’ sake, we want to maintain some
harmless vestige of the charade, then let them keep wearing their robes to work
— for at least as long as they can persuade voters to keep them in these jobs.
Let’s dispense, though, with the fiction that their judgments are the product
of legal acumen rather than sheer will.
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.
The Supreme Court is not unique in being captured by
progressives. It is a lagging indicator, its crush of late-June edicts
reflecting what’s become of the political class of which it is now very much a
part. The president rules unilaterally and in contravention of the laws. Half
of Congress applauds, the rest shrugs and says there is nothing to be done. The
elements of the progressive agenda the political branches don’t feel safe
implementing are delegated to anonymous bureaucrats in the administrative
state. The courts are there to finish the job, to give any mopping up the aura
of legal rigor.
But none of it is about the law, or even expected to be.
That time is gone.
No comments:
Post a Comment