REWIND 2010: President Obama Insults Supreme Court Justices to Their Face at State of the Union AddressPosted: February 4, 2017
WASHINGTON, JAN. 28, 2010— Supreme Court decisions. But they tend to do so at news conferences and in written statements, not to the justices’ faces.It is not unusual for presidents to disagree publicly with
President George W. Bush, for instance, did not hesitate to criticize a 2008 rulingrecognizing the rights of prisoners held at Guantánamo Bay, Cuba — but he did it at a news conference in Rome. President Richard M. Nixon said he was disappointed with a 1974 decision ordering him to turn over the tapes that would help end his presidency — in a statement read by his lawyer.
Before he began his attack on a Supreme Court decision not yet a week old, Mr. Obama added a few words that had not been in the prepared text. The new preface — “with all due deference to separation of powers” — seemed to acknowledge that he was aiming unusual rhetorical fire at several Supreme Court justices sitting right in front of him.
Justice Samuel A. Alito Jr., one of the justices in the majority in the decision under attack, shook his head as he heard the president’s summary of Citizens United v. Federal Election Commission, and he appeared to mouth the words “not true.”
It was not quite the shouted “You lie!” from Representative Joe Wilson, Republican of South Carolina, at September’s presidential address to a joint session of Congress. But in its way, the breach of decorum on both sides was much starker.
“The court’s legitimacy is derived from the persuasiveness of its opinions and the expectation that those opinions are rendered free of partisan, political influences,” Mr. Verniero said. “The more that individual justices are drawn into public debates, the more the court as an institution will be seen in political terms, which was not the intent of the founders.”
Modern presidents and Supreme Court justices do not interact very much, and this particular president might be expected to have strained relationships with at least Justice Alito and Chief Justice John G. Roberts Jr., both of whose nominations he voted against as a senator. The president and chief justice would both also probably like to forget the flubbed administration of the presidential oath at Mr. Obama’s inauguration last year. Read the rest of this entry »
Supreme Court Justice Antonin Scalia visits Uncommon Knowledge for a wide ranging interview including the living constitution, Roe v. Wade, Congress’ relationship to the court, and to discuss his new book Reading Law: The Interpretation of Legal Texts
Was the Constitution written in a way that was designed to protect freedom and limit the government’s size? Has it been effective in doing that? And what’s the Supreme Court’s record when it comes to protecting our rights? Robert George, Professor of Jurisprudence at Princeton University, answers these questions and more.
Paul Sperry writes: A key part of President Obama’s legacy will be the fed’s unprecedented collection of sensitive data on Americans by race. The government is prying into our most personal information at the most local levels, all for the purpose of “racial and economic justice.”
“The FHFA will also pry into your personal assets and debts and whether you have any bankruptcies. The agency even wants to know the square footage and lot size of your home, as well as your interest rate.”
Unbeknown to most Americans, Obama’s racial bean counters are furiously mining data on their health, home loans, credit cards, places of work, neighborhoods, even how their kids are disciplined in school — all to document “inequalities” between minorities and whites.
“FHFA will share the info with Obama’s brainchild, the Consumer Financial Protection Bureau, which acts more like a civil-rights agency, aggressively investigating lenders for racial bias.”
This Orwellian-style stockpile of statistics includes a vast and permanent network of discrimination databases, which Obama already is using to make “disparate impact” cases against: banks that don’t make enough prime loans to minorities; schools that suspend too many blacks; cities that don’t offer enough Section 8 and other low-income housing for minorities; and employers who turn down African-Americans for jobs due to criminal backgrounds.
Big Brother Barack wants the databases operational before he leaves office, and much of the data in them will be posted online.
So civil-rights attorneys and urban activist groups will be able to exploit them to show patterns of “racial disparities” and “segregation,” even if no other evidence of discrimination exists.
The granddaddy of them all is the Affirmatively Furthering Fair Housing database, which the Department of Housing and Urban Development rolled out earlier this month to racially balance the nation, ZIP code by ZIP code. It will map every US neighborhood by four racial groups — white, Asian, black or African-American, and Hispanic/Latino — and publish “geospatial data” pinpointing racial imbalances.
The agency proposes using nonwhite populations of 50% or higher as the threshold for classifying segregated areas.
Federally funded cities deemed overly segregated will be pressured to change their zoning laws to allow construction of more subsidized housing in affluent areas in the suburbs, and relocate inner-city minorities to those predominantly white areas. HUD’s maps, which use dots to show the racial distribution or density in residential areas, will be used to select affordable-housing sites.
“The FHFA has offered no clear explanation as to why the government wants to sweep up so much sensitive information on Americans, other than stating it’s for ‘research’ and ‘policymaking.'”
HUD plans to drill down to an even more granular level, detailing the proximity of black residents to transportation sites, good schools, parks and even supermarkets. If the agency’s social engineers rule the distance between blacks and these suburban “amenities” is too far, municipalities must find ways to close the gap or forfeit federal grant money and face possible lawsuits for housing discrimination.
Civil-rights groups will have access to the agency’s sophisticated mapping software, and will participate in city plans to re-engineer neighborhoods under new community outreach requirements.
“By opening this data to everybody, everyone in a community can weigh in,” Obama said. “If you want affordable housing nearby, now you’ll have the data you need to make your case.”
Meanwhile, the Federal Housing Finance Agency, headed by former Congressional Black Caucus leader Mel Watt, is building its own database for racially balancing home loans. The so-called National Mortgage Database Project will compile 16 years of lending data, broken down by race, and hold everything from individual credit scores and employment records.
Mortgage contracts won’t be the only financial records vacuumed up by the database. According to federal documents, the repository will include “all credit lines,” from credit cards to student loans to car loans — anything reported to credit bureaus. This is even more information than the IRS collects.
The FHFA will also pry into your personal assets and debts and whether you have any bankruptcies. The agency even wants to know the square footage and lot size of your home, as well as your interest rate. Read the rest of this entry »
Read more at National Review Online
George F. Will writes: Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.
“Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate.”
The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.
“The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”
The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.
The court’s decision flowed from many decisions by which the judiciary has written rules that favor the government in cases of statutory construction. The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.
” The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.”
Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting.” That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating.”
Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts invents a corollary to “Chevron deference.”
Named for a 1984 case, Chevron deference has become central to the way today’s regulatory state functions. It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. Read the rest of this entry »
Rep. Brian Babin (R-Texas) said that his SCOTUScare Act would make all nine justices and their employees join the national healthcare law’s exchanges.
“As the Supreme Court continues to ignore the letter of the law, it’s important that these six individuals understand the full impact of their decisions on the American people. That’s why I introduced the SCOTUScare Act to require the Supreme Court and all of its employees to sign up for ObamaCare.”
— Rep. Brian Babin
“As the Supreme Court continues to ignore the letter of the law, it’s important that these six individuals understand the full impact of their decisions on the American people,” he said.
“That’s why I introduced the SCOTUScare Act to require the Supreme Court and all of its employees to sign up for ObamaCare,” Babin said.
“They deserve an Olympic medal for the legal gymnastics.”
— Rep. Joe Pitts
Babin’s potential legislation would only let the federal government provide healthcare to the Supreme Court and its staff via ObamaCare exchanges.
“By eliminating their exemption from ObamaCare, they will see firsthand what the American people are forced to live with,” he added.
His move follows the Supreme Court’s ruling Thursday morning that upheld the subsidies under ObamaCare that are provided by the government to offset the cost of buying insurance. Read the rest of this entry »
Presidential Legacy Preserved, Achievement Enshrined: After Trash-Talking Supreme Court and Insulting its Integrity, Obama Reverses Course, Celebrates Wisdom of Court
WASHINGTON — Brent Kendall and Louise Randofsky report: The U.S. Supreme Court ruled the Obama administration can continue to subsidize health-insurance purchases by lower-income Americans across the country, a decision that preserves a centerpiece of the Affordable Care Act.
The ruling marks the second time President Barack Obama’s signature domestic policy achievement has survived a near-death experience in the courts, and leaves the law on a firmer footing for the remainder of his time in office.
The court ruled contested language in the 2010 health-care law allows the administration to offer subsidies in the form of tax credits to people in all states, including those who buy health coverage on the federal insurance site HealthCare.gov.
Roughly 6.5 million Americans in around three dozen states stood to lose credits if the Supreme Court had ruled against the administration. The court was deciding whether the tax credits could only go to people in the minority of states running their own online insurance marketplaces, where people compare policies and apply for coverage.
At issue was language in the Affordable Care Act that says insurance subsidies are available for coverage purchased on an insurance-exchange “established by the state.”
The Obama administration argued the entire structure and design of the law made clear its purpose was to extend affordable coverage nationwide.
Challengers who sued the administration—four residents of Virginia—argued the wording of the law authorized insurance subsidies only when an individual buys coverage on a state-run insurance site. Read the rest of this entry »
WASHINGTON (Reuters) – Lawrence Hurley reports: Tensions are building inside and outside the white marble facade of the U.S. Supreme Court building as the nine justices prepare to issue major rulings on gay marriage and President Barack Obama’s healthcare law by the end of the month.
Of the 11 cases left to decide, the biggest are a challenge by gay couples to state laws banning same-sex marriage and a conservative challenge to subsidies provided under the Obamacare law to help low- and middle-income people buy health insurance that could lead to millions of people losing medical coverage.
Many legal experts predict the court will legalize gay marriage nationwide by finding that the U.S. Constitution’s guarantees of equal treatment under the law and due process prohibit states from banning same-sex nuptials.
The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights.
In three key decisions since 1996, Kennedy has broadened the court’s view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.
During oral arguments in the gay marriage case on April 28, Kennedy posed tough questions to lawyers from both sides but stressed the nobility and dignity of same-sex couples.
The healthcare decision is tougher to call. Chief Justice John Roberts, the swing vote when the court upheld Obamacare in 2012, said little during the March 4 oral argument to indicate how he will vote. Read the rest of this entry »
Symposium: When strict scrutiny ceased to be strict
At SCOTUSblog, Floyd Abrams writes: The result in the Williams-Yulee case was a difficult one to predict except that it was entirely predictable that the result would be by a deeply divided Court. It is no surprise that it was a five-to-four ruling, and no surprise at all that the jurists on both sides appear to have been irritated and frustrated by the views of those on the Court with whom they differed. The same had been true in Republican Party of Minnesota v. White (2002), the Supreme Court’s last trek into the muddy constitutional waters that required an assessment of First Amendment issues in the context of judicial elections. That case was not only decided by a five-to-four vote, but one of the five Justices — Justice Sandra Day O’Connor — repeatedly announced after her retirement that she regretted her vote.
“Critics of Citizens United can take no solace from yesterday’s decision, since it is rooted in all respects in the difference between judicial elections and all others. If anything, the more the Court focuses on the special and distinct role of judges as opposed to other elected officials, the more firmly it reinforces its earlier ruling as to the latter.”
The unavoidable problem in the case stems from the reality that if judges are to be elected, they must be allowed to campaign for election. Yet, what they say in their campaigns about what they will do as judges may lead people to doubt their open-mindedness as judges.
[Also see – Williams-Yulee v. The Florida Bar: A Disappointing End by Jonathan Keim]
And when they personally raise money, at least from lawyers and potential litigants before them, it may well lead to the perception of indebtedness on their part to their contributors.
“One need not adopt wholesale Justice Scalia’s final thrust at the majority in the case to admire its beauty: ‘The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.’”
The Florida Code of Judicial Conduct sought to strike a compromise, barring judicial candidates from personally soliciting campaign funds, while allowing their campaign committees to solicit funds for them and allowing the candidates to write thank-you notes to contributors. On its face, it was a perfectly reasonable, good faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.
The problem with the ruling begins with an ostensible First Amendment victory. Seven of the nine members of the Court (all but Justices Ruth Bader Ginsburg and Stephen Breyer) concluded that strict scrutiny should apply, a usual predicate for striking one sort or another of government limitation on speech. Read the rest of this entry »
The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.
WASHINGTON (AP) — The Supreme Court on Wednesday made it easier for people to sue the federal government for negligence, in a decision that could affect military veterans with claims of medical malpractice.
“One case stemmed from a fatal traffic accident on Interstate 10 in Phoenix in which a car passed through a safety barrier into oncoming traffic. The plaintiff, Marlene June, represents the child of one of two people killed in the crash.”
The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.
“June claimed that the Federal Highway Administration made her wait more than two years before she was allowed to depose officials and uncover evidence that the barrier had failed a crash test.”
Justice Elena Kagan wrote the majority opinion that combined the cases and upheld rulings by the 9th U.S. Circuit Court of Appeals that said the deadlines were somewhat flexible under the federal law that deals with lawsuits against the government.
The Obama administration argued that Congress intended the deadlines to be firm and that the government should not leave itself open to old claims indefinitely.
“The other case involved a Hong Kong woman who sued the Immigration and Naturalization Service after she was detained in Oregon, strip-searched and deported.”
But Kagan said Congress did not clearly indicate it wanted those deadlines to be iron-clad when it passed the Federal Tort Claims Act. “The time limits in the FTCA are just time limits, nothing more,” Kagan wrote. Judges have discretion to extend the deadlines, she said. Read the rest of this entry »
Failure Upon Failure
Stephen F. Hayes writes: A year before his first inauguration, Barack Obama laid out the objective of his presidency: to renew faith and trust in activist government and transform the country. In an hourlong interview with the editorial board of the Reno Gazette-Journal on January 16, 2008, Obama said that his campaign was already “shifting the political paradigm” and promised that his presidency would do the same.
“Journalists not only swallowed this legend, many of them promoted it. Obama didn’t appear ideological to influential political reporters because they shared his views. He wasn’t liberal, he was right.”
His model would be Ronald Reagan, who “put us on a fundamentally different path,” in a way that distinguished him from leaders who were content merely to occupy the office. “I think that Ronald Reagan changed the trajectory of America in a way that Richard Nixon did not. And in a way that Bill Clinton did not.”
If Reagan sought to minimize the role of government in the lives of Americans, Obama set out to do the opposite. “We’ve had a federal government that I think has gotten worn down and ineffective over the course of the Bush administration, partly because philosophically this administration did not believe in government as an agent of change,” he complained.
“I want to make government cool again,” he said.
“When he’s not on the golf course, the president seems to spend most of his time fundraising for vulnerable Democrats, threatening executive action on those things he can’t accomplish by leading, and working to minimize crises of his own making. This is a failed presidency.”
Obama believed in government, and he was confident that his election would signal that the American people were ready to believe again, too.
“Rather than restore faith in government, the Obama presidency has all but destroyed it.”
As we approach the sixth anniversary of his election, the Obama presidency is in tatters. Obama’s policies, foreign and domestic, are widely seen as failed or failing. His approval rating is near its lowest point. Obama’s base of support is loyal and fierce and shrinking. Much of the country sees him as incompetent or untrustworthy, and government, far from being “cool,” is a joke on good days and a threat on bad ones.
For The Washington Post, George Will writes: Two 5 to 4 decisions this week, on the final decision day of the Supreme Court’s term, dealt with issues that illustrate the legal consequences of political tactics by today’s progressives. One case demonstrated how progressivism’s achievement, the regulatory state, manufactures social strife and can do so in ways politically useful to progressives. The other case arose from government coercion used to conscript unwilling citizens into funding the progressives’ party.
“Twice this week the court played its indispensable role as constable, policing portions of this forest where progressivism has produced government guilty of gratuitous bullying.”
Under the 1993 Religious Freedom Restoration Act (RFRA), any government action that substantially burdens religious practices will be subject to strict judicial scrutiny to determine if it, rather than some less intrusive measure, is necessary to achieve a compelling government interest. The Affordable Care Act, as supplemented by regulations, requires for-profit employers to provide health-care coverage that includes all 20 Food and Drug Administration-approved birth control methods.
“…more and more decisions are made by unelected and unaccountable executive-branch ‘experts’ exercising vast discretion.”
These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly incompatible birth control mandate? Congress didn’t. Read the rest of this entry »
“But without checks, democratically approved legislation can oppress minority groups…”
— Supreme Court Justice Sonia Sotomayor
WASHINGTON (AP) —Mark Sherman reports: The Supreme Court on Tuesday upheld Michigan’s ban on using race as a factor in college admissions despite one justice’s impassioned dissent that accused the court of wanting to wish away racial inequality.
The justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
— Supreme Court Justice Anthony Kennedy
The decision bolstered similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies. Read the rest of this entry »
Ken Klukowski writes: On Monday, the Supreme Court heard arguments regarding whether President Barack Obama’s appointments to the National Labor Relations Board (NLRB) are unconstitutional. The case will probably be a lopsided defeat for the president, with his own Supreme Court appointees expressing deep skepticism of the Justice Department‘s arguments.
If the Court goes the route it signaled during argument, all the rulings and regulations from that powerful body over a period of a couple years will be declared illegal, at least temporarily until a new Board can reconsider them.
You and What Army? Delusional Lt. Col. Robert Bateman’s Captain Queeg Moment: Insults Supreme Court for Heller Decision; Calls for Massive Gun Bans, Turn-InsPosted: December 9, 2013
“Ah, but the strawberries! That’s where I had them. They laughed at me and made jokes but I proved beyond the shadow of a doubt…”
NRA-ILA reports: To say the least, some of the characters who have appeared on the national scene in recent years have demonstrated some enormous egos and used some pretty ill-tempered language in their efforts to turn this nation into something we wouldn’t recognize. But Army Lt. Col. Robert Bateman is challenging them for top dishonors in that regard, with an over-the-top rant in Esquire magazine this month.You pretty much know what’s coming when a guy begins by claiming, “My entire adult life has been dedicated to the deliberate management of violence. . . . My job . . . is about killing. I orchestrate violence. . . . I am really good at my job.”
Real warriors don’t brag, of course. They let their actions speak for themselves. And real warriors support the Second Amendment and oppose gun control, as indicated by a letter signed by over 1,100 current and former Army Special Forces soldiers in January.
Bateman’s self-adulation was just the beginning, however.
He next attacked Supreme Court Justice Antonin Scalia for “his attempt to rewrite American history and the English language” in his majority opinion in District of Columbia v. Heller. Bateman also extended his attack to Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas for concurring with Justice Scalia. “They flunked basic high school history,” Bateman said. Bateman added that Esquire readers could read the Heller decision for themselves, but that it really isn’t necessary, because “I can spell it out for you in ten seconds.”
At this point, we found ourselves asking to be spared additional arrogance and ignorance, but Bateman wasn’t inclined to oblige.
Bateman continued to explain his factually incorrect idea is that the Second Amendment’s reference to the well regulated militia means that no one has the fundamental, individual right to keep and bear arms. “As of 1903, the ‘militia’ has been known as the National Guard,” Bateman insisted.
In 2013 rather than the 1950s, a technical error on a marriage certificate wouldn’t cause anyone consternation. But let’s say, for some reason or another, the government invalidated my marriage. Would it matter?
Not really. Marriage is primarily a pact between two people and, in the view of many, a sacrament of the church. The state merely recognizes this contract. If, say, a totalitarian government (think the Khmer Rouge or others like them that have meddled in such things) dissolved my marriage, my wife and I would still be married. The state could make our lives miserable, but it couldn’t end our marriage.
Yet that point seems lost these days. The public battles involve two sides who see the government as the means to legitimize their viewpoints. One side says gay marriage is wrong and the other says that it is the same as any other marriage. The two sides will never see eye to eye.
The governmental “benefits” at the heart of many of the gay-marriage battles are mostly rhetorical window-dressing. The state shouldn’t be handing out many privileges or payments and to whatever degree issues involving hospital visitation and inheritances are an issue, their terms and conditions can easily be worked out without a cultural war over the meaning of “marriage.”
Unfortunately, the court’s meddling has ensured that such a battle will keep going.
I’m not unsympathetic to the high court’s 5-4 decision to overturn most of the 1996 Defense of Marriage Act, designed specifically to deny governmental benefits to gay couples and to allow states to refuse recognition of gay marriages from other states. If the government gives out stuff, it’s reasonable to insist that it give it out in the most fair-minded basis.
The majority’s rhetoric reflects its desire to take a noble stand in this cultural divide. The court’s dissenters were right that the majority opinion was overheated. But at least the decision made some legal sense. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote for the majority.
By contrast, the court’s decision (actually, a non-decision) on California’s Prop. 8 seemed lifted out of “Alice in Wonderland.” In 2008, voters approved this constitutional ban on gay marriage. Jerry Brown as attorney general and now governor opposed it, so he refused to defend it against court challenges. The Supremes refused to rule on the merits of the statute because its defenders didn’t have “standing.” Only the state government apparently had such standing — but that government refused to do its duty.
As National Review’s Hadley Arkes put it, “If the state has a Democratic governor … he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution.” The meaning is even broader and more disturbing than that. Top officials of all parties now have de facto veto power over all voter initiatives. They simply need not defend in court any initiative they don’t like and there is no one else the high court will allow to defend it. That’s an anti-democratic precedent.
There’s no doubt the courts, legislatures, and public opinion are moving in a pro-gay-marriage direction. Timemagazine was right to declare this “one of the fastest civil rights shifts in the nation’s history.” The culture has shifted. That part doesn’t bother me. I have no problem with gay people getting married. But it disturbs me when the battles are fought in the political system rather than in the cultural arena. Both sides are responsible for the over-politicization of this personal and cultural matter, by the way.
The best solution always has been the separation of marriage and state. If my priest decides to marry gay people, then my fellow parishioners would have every right to be upset about that based on their cultural traditions and understanding of Scripture. If your pastor wants to marry gay people, then it’s none of my business. The terms of marriage should be decided by religious and other private organizations, and the state shouldn’t intervene short of a compelling reason (i.e., marriage by force or with children).
Liberals were more open to this “separation” idea back when conservative pro-family types were ascendant. Now, some conservatives are understanding its merits as a more liberal view is ascendant. Conservatives should have listened when they had some bargaining power, but everyone wants to impose their values on others by using government.
Government neutrality — or the closest we can get to it — is the best way to ensure fairness and social peace on this and most other social issues. Marriage is too important of an institution to be dependent on the wiles of the state. Do we really care if the state validates our marriage licenses?
A Return to Judicial Activism
Tuesday’s election victory means that President Obama will have four more years to reshape the federal judiciary. While it remains to be seen whether he can achieve any legislative victories in the face of Republican opposition, there is little doubt that he will, for the most part, get to appoint the judges of his choice.
Four justices on the Supreme Court are in their mid- to late seventies now: Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer. With past as prelude, we can expect any Obama nominees to be reliably liberal in the mold of his two appointments from the first term, Justices Elena Kagan and Sonia Sotomayor. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.
An invigorated and expanded liberal bloc on the Court could undo many important precedents. The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.
The president’s reelection also has profound implications for the lower courts. Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges. By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton. Notably, this includes at least three judges of the Court of Appeals for the D.C. circuit—the court that hears most appeals of the decisions of federal agencies and, thus, one of the few institutions that can limit or block the administration’s regulatory overreach. But with Obama poised to fill three vacancies on this important court, its liberal wing will be greatly strengthened.
Unlike Supreme Court nominees, who receive intense media scrutiny, lower-court picks often fly under the radar. Obama’s true inclinations can be seen in nominees like Goodwin Liu, an outspoken proponent of using the “living Constitution” to create fundamental rights to welfare benefits; or Louis Butler, who, as a justice on the Wisconsin Supreme Court, “offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and ‘collective liability’ for lead paint manufacturers,” as Carter Wood reported at Point of Law.
To be fair, Liu and Butler were not confirmed. They demonstrate, however, Obama’s inclination to appoint liberal activists—the kind of judges who can advance progressive goals without the bother of legislation. Now, freed from any concerns about reelection, Obama has little reason not to put forward aggressively liberal judges in the hope that some of them will get through. And no doubt some will.
Adam Freedman is a contributor to Ricochet. His book, The Naked Constitution: What the Founders Said and Why It Still Matters, is published by Broadside Books.
via City Journal