My last post ended with a glancing reference to Joseph Schumpeter, and a teaser for “further thoughts” regarding how a free people, living in the greatest country in human history, came to relinquish their sovereignty to unelected, black-robed solons.
Editor’s note: This Fourth of July oration was first delivered by G. M. Curtis III on July 1, 1989 in Lone Mountain, Montana, for a conference on American citizenship.
As an American historian and as an American citizen who looks forward to the 21st. century, I place great stock in John Adams’s early 19th. century exhortation to future generations that they remember and celebrate the signing of the Declaration of Independence. Technically speaking, I suppose that we are jumping the gun by about one day, since the Continental Congress first agreed to the Declaration on the 2nd. of July 1776. Actually, the past five days in one way or another has represented a remembrance and a reconsideration of many of those values and beliefs that John Adams cherished enough to tender the ultimate sacrifice: his life and property. It is altogether fitting and proper, then, as my historical footnote for these discussions and as a remembrance of the Declaration of Independence, to return to the first principles therein contained, principles that not only retain their merit today, but more importantly, offer us hope for the years to come.
In what President Obama called its “thunderbolt” decision on same-sex marriage, the Supreme Court’s Obergefell v. Hodges judgement has put the matter of discrimination at the very top of America’s social agenda.
If there is one certainty in our country, it is that everyone opposes discrimination. But it is difficult to get a precise handle on what constitutes discrimination. While there is a vast literature on the subject, there is surprisingly little scholarly appetite for defining illegal discrimination.
It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
There have been a number of recent reports on how and why the Supreme Court moved left this past term. Two notable pieces were this one in the New York Times and this one by Tom Goldstein at the Scotus Blog. A common explanation is that the conservative justices have begun to split much more than the liberal ones. I am not sure that I agree.
In my view, the main explanation is that, in this past term, Justice Kennedy simply voted with the liberals more often than with the conservatives. If I am right, then there is no elaborate explanation that is necessary. The results are simply what Justice Kennedy preferred, based presumably on the constellation of cases that arose.
There are different ways to analyze the statistics, but here is the basis of my argument. (I based my statistics on this page from Scotus Blog.) There were 19 5-4 decisions this past term. I excluded 3 of them, because the majority in these cases involved either two conservatives and two liberals, or three liberals and two conservatives. In those cases, the decision was arguably not based primarily on partisan differences.
The story of this term has been a united block of the left on the Court, where Justices on the right were fractured. I have suggested that one important reason is that justices on the right take jurisprudence seriously, whereas the left are ideologically motivated. More evidence for this proposition comes from the observation that even when the right won, their justices often wrote separately. It is reason not result that counts for them. And this is as it should be: insistence on right reason affirms the rule of law. A focus on results is just about political power.
In contrast, when the left was in the majority, they tended to join opinions as one, even when they were as doctrinally unpersuasive as Justice Anthony Kennedy’s in the same-sex marriage case. The senior justice on the left boasted she kept her voters in line. Indeed the real division on the Court is between legalists of various kinds and ideologues of one kind.
What is to be done? Above, all win a Presidential election. Ultimately if we are to preserve the Constitution as a rule of law, we must elect someone committed to justices who will interpret it as other law, not a vessel for advancing the left’s ideology. Yet the leading candidate of one of our parties has already said that what matters to her is not jurisprudence but a result—the overruling of Citizens United, a case that perhaps not coincidentally permitted citizens to use a corporate form to distribute a film that criticized this candidate herself.
But what can be done in the interim by the justices themselves?
Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
I am excited to announce that Mark Pulliam will blog for us in July as Michael Greve returns to Germania for the month. Mark's first contribution to the site was on race and cronyism at the University of Texas. I think it's safe to assume that he'll have more to say on this topic. Mark is a writer living in Austin. After graduating from the University of Texas School of Law, he clerked for Judge Walter Ely on the Ninth Circuit Court of Appeals and then practiced law for 30 years with the firm of Latham & Watkins, specializing in labor…
Many supporters of a policy of same-sex marriage, and even many supporters of a constitutional right to same-sex marriage—there is a difference—have felt compelled to disavow the shoddy analysis-cum-emotivism by which Justice Kennedy imposed that conclusion. What the euphoria over newly released Supreme Court decisions seems always to obscure is that the same method will be available to other jurists in other cases. Conclusions reached in future may not be so agreeable to those celebrating Obergefell v. Hodges today.