A Jewish Reflection on Liberal Justice(s)

The Supreme Court has surprised us by rendering two decidedly “liberal” decisions in a single week. The more significant ruling was the decision that states cannot exclude gay couples from entering marriages. This decision rests primarily on a broad reading of the 14th Amendment to the Constitution, granting due process and equal protection to all citizens under state law.  It expands on broad readings of the `14th Amendment in pivotal past cases granting privacy rights, rulings that lie at the center of political wedge issues today, including the debate over the right to medical abortion.

The other important ruling holds that the Affordable Care Act authorizes subsidies to those served by a federal insurance exchange. The Act states that the federal government shall subsidize health insurance contracts written under state insurance exchange programs, but says nothing of subsidies for the federal programs established in states that choose not to sponsor state exchanges. This decision rests primarily on Justice Roberts’ view of the “statutory intent” of Congress expressed in the Act, notwithstanding the lack of actual words in the law authorizing the subsidies being granted by the government.

Are we to envision a change in the judicial leanings of the Court? Has the era of 5-4 decisions with Justice Kennedy the swing vote come to an end? Chief Justice Roberts – until now a seemingly bedrock conservative – signed the liberal ruling in the Affordable Care Act case, probably bringing to a close years of work its opponents have invested trying to destroy that law.

Evidence that the Chief Justice has changed philosophically might be found in the blistering language his previous partners in conservatism – Justices Scalia, Alito and Thomas – heaped on his ruling in their dissent. Just as a sample:

“The Court … accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. … (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” … (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that ‘the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase’ …”

One might suppose that in a learned judicial tribunal, if members publicly throw the word “shame” at the chief, they do not expect to find common ground with him any time soon!

Yet it is too soon to read such a broad epiphany into the rulings of the Chief Justice. Just three days before the Affordable Care Act case, he rendered an opinion for the Court striking down a Department of Agriculture program under a 1937 New Deal law, regulating the market in raisins to prevent ruinous competition. Here Roberts was joined by his usual partners Alito, Scalia, and Thomas with Justice Kennedy as the swing vote forming a majority. And a day later, Roberts joined the traditional conservative wing, Alito, Scalia and Thomas, in dissent against the decision opening up marriage to gays.

As Jews we can rejoice in the outcomes of the two cases, even if we remain stoic as to any change in the overall direction of the Court. We can rejoice for innumerable gay couples wanting to enter matrimony and for the millions who cannot afford health insurance at market rates. Even more, we can also rejoice for the broad reading of the 14th Amendment to the Constitution in the gay marriage case.

For its first hundred years – as recently as 1970 – the 14th Amendment was considered a response to racism, not to every deprivation of rights. In a voting rights case in 1970 Justice Black wrote:

“Above all else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race. …. While this Court has recognized that the Equal Protection Clause of the Fourteenth Amendment in some instances protects against discriminations other than those on account of race … it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection.”

Gay people are not a racial group.  For the Court to establish a new protected personal right, the right of gay people to marry the person of one’s choice,  is therefore very important.  The application of equal protections under the 14th Amendment beyond racial lines is by no means a “first.”  Nonetheless we as Jews, a minority based on ethnicity and religion not race, should be very pleased with this extension of equal protection of the laws to expand liberty and curb harmful, needless discrimination.


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