The Supreme Court seems to have ended its session and begun summer vacation with a bang. Three major decisions over the past several days have reflected what I heard one commentator refer to as the most "liberal" court in decades.
To which I did a double take. But when I thought about it, we did have some really significant wins.
The surprise decision was the one that supported the Fair Housing Act of 1968. Surprising in light of the demolition of the Voting Rights Act, which gave states the right the do whatever damn thing they wanted to keep selected groups from voting, and which they wasted no time following through. Chief Justice John Roberts, with his Pollyanna smile, declared there was no need for voting rights protection because racism was dead. Leaving me wondering what rationalizations he made to justify the red-state rush to legalize voter discrimination immediately after the decision.
Not one to ever learn from his mistakes, Roberts was one of the four who voted against supporting the Fair Housing Act. But he did weigh in with us liberals on the case that had my heart beating fast. The state health care exchanges, with federal subsidies, remained intact, leaving a lot of folks like me with our Obamacare. The vote was 6-3, with the core group of idiots, Scalia, Thomas and Alito holding down the right wing-nut opinion.
For those of you who are thinking Roberts may be sliding to the left, his opinion had nothing to do with the rights of Americans to have affordable health care. His decision, just like the one in favor of Obamacare three years ago, was purely pro-business. If you recall back then Roberts' opinion had pretty much everybody's head spinning, including his own. He twisted and corkscrewed the law, arguing not the obvious one that was in question regarding the Commerce Clause, but that the individual mandate was a tax, and the feds were within their constitutional right to levy that tax.
So. I'm thinking Roberts knew quite well that the insurance industry would take a crippling blow if it lost all us customers that could no longer afford health insurance without the federal subsidies. And there are quite a lot of us.
Scalia, on the other hand, and despite his contention that his decisions are based purely on constitutional originalism, consistently bases his decision on what feels good to him. This is the guy, after all, who believes that the devil is a real person. So let's assume logic doesn't have as much to do with his thinking process as he would like us to believe.
Along with his imaginings of the devil and what the founding fathers believed we should be doing all these years later, Scalia has the kind of rigid and fragile psyche that just can't take much confrontation. And so when he writes his dissents (which Chris Hayes noted are extremely wonderful and entertaining, especially because they are dissents) he tends not to sound all that educated, or intelligent, or even rational.
In his dissenting opinion on the Obamacare decision he calls the majority opinion "interpretive jiggery-pokery" and "pure applesauce," legal terms that no doubt go back to the founding fathers. He snipes that since the Court has backed Obamacare in two major decisions, "we should start calling this law SCOTUScare." And in an overwrought, pubescent and melodramatic fit, he sums it up by saying, "Words no longer have meaning...."
Roberts predictably let his right-wing flag fly in the marriage equality decision. No surprise there. It was purely a human rights case, and human rights will not sway our Chief Justice. And I was not at all surprised that Kennedy was the deciding vote in favor of marriage equality, as he has voted in favor of gay rights before.
I'm thinking that a couple of things are happening with the Supremes. Justice Kennedy retains his position as the swing vote. I believe that he is a romantic, and he likes to feel like he is being wooed. It also seems to me that he is easily influenced by the new guys on the block. It happened when Roberts and Alito took up the cause of the right a decade ago, and now we have the left-leaning Kagan and Sotomayor.
Roberts is going to vote pro-business and against human rights. The only individual he is going to support is the individual corporation.
The most fun these days is watching the narcissistic Scalia as he comes apart at the seams. And even better, the more that happens, the less likely Kennedy is likely to want to be seen siding with him, leaving him sitting alone at the cafeteria table with Clarence Thomas and Sammy Alito.
Without taking away from these important victories, though, I am concerned about one group of decisions, those affecting women's privacy and health care rights. Hobby Lobby, which has never blinked about paying for insurance that covers vasectomies, won the right to deny women contraceptive coverage. Even Kagan and Sotomayor voted against a woman's right to be safe from harassment at an abortion clinic, refusing to support a state's right to determine an appropriate buffer zone from protesters.
At this point, with state and federal legislators pushing ever more extreme anti-abortion bills into law, pro-choice groups are afraid to take a case to this Supreme Court, fearing the complete overturn of Roe v. Wade. This could happen, but we need to take our cue from the fearlessness and persistence of the LGBT community. We need to continue to take cases to the Supremes, and we need to find new arguments, just as Burwell did with Obamacare. We can't stop fighting, and we can't let our worry about the bias of all those Catholics on the bench slow us down or even cause us to hesitate. As disappointed as I have been in the women's reproductive health care decisions, it is only by showing our strength that they will eventually be swayed.
So have a good summer vacation, Supremes. We are counting on you to keep us entertained next time around.
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