The Obergefell Decision is Incorrect

I think the Supreme Court decision in Obergefell v. Hodges, which declared that state prohibition of gay marriage is unconstitutional, is incorrect. I can't find a right to marry in the Constitution.

That's not to say that I think gay couples should not be married. Every state in the union, and the federal government as well, should endorse and protect same-sex marriages. There is not earthly reason to prohibit it; the arguments made by opponents are silly and often contradictory. As I noted in the space earlier, Justice Scalia's dissent in the case was especially embarrassing. No one, for example, has a First Amendment right to refuse to interact with gay people in the public sphere. That's nonsense.

Also, I think the Supreme Court decision in Lawrence v. Texas is absolutely correct. Justice Kennedy's opinion is that case made precisely the right point when it said that

liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct....  The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

To outlaw homosexual conduct is as much an invasion into basic liberty as it would be to outlaw heterosexual conduct as a whole. This kind of government intrusion is exactly the kind of this the 9th Amendment was written to prevent. 

Marriage, on the other hand, is not private. It is an explicitly public act, recognized (or not) by religious, social, or political communities. It's not conducted in private, and has no serious bearing on other protected behavior. One can be gay, straight or otherwise whether one is married or not. Although Justice Roberts dissent was unnecessarily uncivil, I think he was right. He said, in part,

Today the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening…

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice…

That is, the right to gay marriage is a legal one, to be protected by political process, not a constitutional one. I think Justice Kennedy and the four justices who signed his opinion went a step too far.

Scalia (Once Again) Undermines His Own Institution

Antonin Scalia would like to think that he is the lone defender of the United States Constitution, and the stalwart member of the Supreme Court. He talks (and talks) about how the "liberal" members of the Court and the promoters of a "homosexual agenda" (a phrase he actually used in an earlier dissent) are usurping the rights of the majority to pronounce homosexuality immoral.

Antonin Scalia is wrong. No one is more responsible for the disintegration of political discourse in this country than he is. His repeated ad hominem attacks on his colleagues, his insistence on emotional, irrational and irresponsible statements in dissenting opinions, he refusal to accept the necessity of stepping out of the limelight in order to maintain at least an appearance of impartiality, help undercut the very rule of law hos purports to defend.

His latest rant, after the Court struck laws that did not accept gay marriages from other states, makes hi look like a fool, and the Supreme Court like a dysfunctional group of political hacks. If he opposes gay marriage on personal religious grounds, that's his right. I think such beliefs are selfish, myopic and out of touch, but OK. If he believes that the Court reached incorrect conclusions, it's his job to dissent. But to ignore the dignity of the Court and launch a campaign against it is unprofessional and harmful.

In my opinion, he is coming quite close to impeachable offenses.

If Roberts' Approach is "Incremental" Maybe He is Real Judicial Conservative

Complaints outlined here, in a New York Times piece, suggest that "conservatives" on the Supreme Court want to overrule more precedents. The way the comments are accumulated overstates the trend a little, I think, but still, the remarks from Justices Alito, Scalia and Thomas indicate the distinction between true judicial conservatives and social conservatives.

Social conservatives want to avoid change in gender roles (by preventing abortions), race relations (by voiding affirmative action programs), and economic policy (by striking anything smelling of redistribution of wealth). They like the way things "back in the day."

Judicial conservatives want to avoid jarring the legal and constitutional framework under which we have been operating for some time. They avoid overturning previous rulings or substituting new priorities for older ones by allowing precedents to stand, even if they are controversial -- Roe v. Wade is the classic example.

I'm not crazy about Roberts's politics, but I dod appreciate that he is alt least somewhat hesitant to do what Scalia prefers, which is just make things the way he wants them.

The Fundamental and Dangerous Problem with the Hobby Lobby Decision

A disingenuous claim, at best (www.rightspeak.net)

I have two problems with the recent ruling in Hobby Lobby v. Sebelius. One, as I have already tried to make clear, has to do with the intellectual inconsistency of a few justices, led by Antonin Scalia. When justices are inconsistent or dishonest about their reasoning it undermines the political discourse in this country and leads us further away from effective self-governance.

The real danger of the opinion, however, lies in its subversion of the very foundation of democratic government: the acceptance that sometimes you don't get your way. Claiming a 1st Amendment exemption from health care laws is disingenuous. Denial of health care coverage for birth control is not a religious practice, and it does not even stem from a serious religious belief. Rather, it's an expression of a political preference, and the owners of the big box hobby store are bitter that their side lost the political debate.

If representative government is going to work, everyone needs to accept the fact that he cannot always have things his way. Our Bill of Rights was not constructed to guarantee that we never lose a debate. To water down fundamental rights -- or, rather, to use the word "right" inappropriately -- is to weaken the whole scheme and threaten our ability to function as a political society.

On the Slippery Slope

The majority in the Supreme Court's decision in Hobby Lobby v. Sebelius assured us that its ruling was very narrow, and would not exempt for-profit corporations from anti-discrimination laws, for example, on religious grounds.

But within days, it issued another order that called those reassurances into question, and non-profit organizations have read the decision as exempting them from a whole host of regulations.

Is this was a "conservative" court does?

Once Again, the "Conservatives" of the Supreme Court Go Wild

Samuel Alito likes to call himself a conservative, as does Antonin Scalia. Once again, however, both these men jumped the rails in the majority opinion in Hobby Lobby v. Sebelius. Essentially, they announced that Congress should have chosen a different way to accomplish their goals. The corporation of Hobby Lobby, they said, had First Amendment rights to exercise religious beliefs (a novel interpretation that no true judicial conservative would endorse, even if social conservatives love it), and Congress chose a method of regulating health care that interfered too much with those rights. They did not assert that Congress had no power to legislate as they did, but they did propose an alternative way of going about it they liked better.

I don't like the decision for a number of reasons, not the least of which being that I find the claim that birth control is tantamount to abortion to be absurd. I'm especially annoyed, however, with the hypocrisy of Alito, Scalia and Thomas and the damage it is doing to our system.

"Politics," the Supreme Court and the Rule of Law

A flurry of media attention has been directed lately at the Supreme Court, which scholars have argued has drifted from its responsibility to serve as neutral arbiter of the law. In early May, Thomas Edsall wrote a piece for the New York Times summarizing a lot of this commentary, and concluded that the Court's polarization comes from the four justices who consider themselves most "conservative."

The core scholarship behind Edsall's op-ed came from a study done by Geoffrey Stone of the University of Chicago, which found that in cases generally considered most "important," these four justices -- Scalia, Alito, Thomas and Roberts -- departed from the "judicial conservativism" they espouse at public speaking engagements, and engaged in an "activist" approach to evaluating legislation.

To be judicially conservative is to refrain from overturning the actions of the political branches unless there is a compelling constitutional reason to do so. Such a reason usually comes from a list articulated in a famous footnote to the Court's decision in United States v. Carolene Products. The principle behind the list is that if a statute infringes on a specific constitutional right or interferes with the basic functioning of democratic processes, the government must prove the necessity of the law; otherwise, the Court ought to assume that any reasonable law is constitutional. The point of such an approach to is prevent judges sitting "on high" from imposing their fundamentally undemocratic judgment on the creation of law. It calls for a careful -- not to say narrow -- reading of the words of the Constitution and a restrained application of judicial power.

Stone argues, however, that in the most important cases Scalia, Alito, Thomas, and Roberts tend to vote not according to these principles but according to their own personal political preferences and tastes -- exactly the thing judicial conservatives say it is wrong to do.

Just as referees and umpires ought not be remembered -- because it's always their worst decisions people recall -- the Supreme Court is ill served by its recent notoriety. Justice Scalia, who writes intentionally inflammatory dissents and makes more public speeches (and earns more money for them) than any other justice, is primarily responsible for all this public attention. In my view, this behavior is unconscionably selfish and destructive.

This problem goes beyond the mere reputation of the Supreme Court. It undermines the very foundations of reasoned public discourse in this country. By design, Congress and the executive branch are intended to pursue self-interested agendas, if not in the personal sense, at least in the political sense. But the judiciary is supposed to be dispassionate and neutral. Its  traditions, its methods, its selection, all are designed to insulate judges from the ephemeral demands of re-elections and other political contradictions. I am not naive enough to believe that judges never are influenced by public opinion or electoral competitions, and I am not even arguing that such influences always are bad. The Court at the moment, however, has lost its moorings, and we all are suffering as a result.