Originally published February 3, 2015
If past is prologue, then the marquee Supreme Court rulings this term will be a replay of 2012 and 2013. Three years ago, Chief Justice Roberts switched sides, and engaged in some rather apparent legal gymnastics, to uphold the constitutionality of the Affordable Care Act. And two years ago, Associate Justice Kennedy wrote a sweeping majority opinion striking down the federal Defense of Marriage Act, but failed to join with liberals to affirm a federal constitutional right of same-sex couples to marry. Roberts seemed motivated to maintain by the legitimacy of the High Court by not striking down President Obama’s signature legislative accomplishment; Kennedy by a libertarian sense that it is up to the states, not the federal government, to define marriage.
Assuming nothing has changed in the interim, there’s little reason to think either justice has changed his respective mind on any of these issues.
In King v. Burwell, the Court will have to decide whether the federal government may continue providing subsidies to assist individuals who purchase health insurance in the federal exchange because the state in which he or she resides refused to create its own marketplace. The case comes down to whether a mere Scrivener’s error in merging the text from two Senate committees into a 1,000-plus page bill can defeat the legislation – despite the clear congressional intent, scoring of the bill and administrative interpretation to the contrary.
The original question before the Court in 2012 was whether the individual mandate of the ACA exceeded Congress’ authority under the Commerce Clause. Roberts said, “yes,” but didn’t want to strike the entire law. When he couldn’t get any of his fellow conservatives to sever the good from bad, he turned to the liberals who also took an all-or-nothing approach based upon the design of the ACA. Obamacare rests on three, interrelated legs: (1) the abolition of pre-existing conditions and lifetime caps, which the insurance companies can only afford due to (2) the individual mandate that broadens the risk pool, but which requires everyone to purchase insurance that is only affordable for some if (3) premiums for those making up to four times the poverty rate ($47,080 in 2015) are subsidized. Take away any one of the legs, and the entire enterprise fails – or descends into a so-called “death spiral.”
Roberts saw the logic of the liberals and stretched to find the penalties associated with the individual mandate as a tax, clearly constitutional under the taxing and spending powers of Congress. In doing so, Roberts got a twofer. He restored the legitimacy of the Supreme Court that had badly suffered after its party-line, blatantly political holding in Bush v. Gore. And he laid the groundwork for reeling in the Commerce Clause, a favorite target of conservatives, upon which most of the welfare state has been based since the Great Depression.
So what has changed since? Well, despite website problems during its initial rollout, the ACA has been a smashing success, enrolling millions more insureds than predicted, holding down healthcare inflation and premiums and causing the number of uninsured to plummet. In other words, the equities in favor of saving Obamacare are exponentially greater today than before the program began last year. If Roberts were to torpedo the ACA now, it is no overstatement to say that millions of people will lose insurance and many will die as a result.
And the efficacy of the case against the ACA in Burwell is so legally, factually and morally infirm that it won’t take much effort by the Chief Justice justify upholding the law, again. Robert’s self-created image as a judicial umpire – only calling balls and strikes as presented to him – will be enhanced, at no jurisprudential cost.
Kennedy’s position on marriage equality is more interesting. As the author Romer v. Evans (1996), Lawrence v. Texas (2003) and the aforementioned U.S. v. Windsor (2013) (striking down, respectively, Colorado’s anti-gay Amendment 2, anti-sodomy law nationwide and DOMA), Kennedy has penned some beautiful phrases about the rights of LGBT Americans.
“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal…. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Yet, in 2013, on the same day that Windsor was announced, Kennedy joined the dissent in the Proposition 8 case, Hollingsworth v. Perry, that would have found standing and wished to rule on the merits of a national, constitutional right to gay marriage. It was almost inconceivable to believe that if Kennedy desired to find such a constitutional right, the four liberals on the Court would not have, enthusiastically, joined him.
Instead, Roberts became the unintentional hero of gay marriage in California, forming a heterodox majority finding that those seeking to uphold Proposition 8 lacked standing to defend it – thus affirming the lower courts’ rulings striking the law from the books and allowing same sex marriage to resume in the Golden State.
The seeming contradiction between Kennedy’s positions on DOMA versus Proposition 8 may be explained by his political and judicial philosophies. His decisions over the years are consistent with those of an old fashion Eisenhower Republican with a libertarian sense of a limited federal government, reserving plenary powers to the states. This explains why he would view the federal government’s definition of marriage under DOMA as an intrusion into a domain traditionally exercised by the states. And at the same time, not wish to commit the same sort of intrusion by having the Supreme Court craft a federal right to marriage equality.
So what has changed since? Well, actually quite a lot. Numerous federal courts have now followed the logic enunciated in Kennedy’s own majority decision in Windsor to strike down same gay marriage state bans, and now same sex couples in 36 states and the District of Columbia can get married. Thousands of gay couples have wed as a result. A negative Supreme Court ruling would leave the status of these marriages in legal limbo, a message Kennedy would seem loathe to send, especially given his Windsor decision’s consternation at how the children of same sex parents would view their families as second class citizens.
Even more, as one federal court after another has struck down state bans on same sex marriage over the last three years, the Supreme Court has refrained from interfering with their rulings – refusing review them or even grant temporary stays. Since it takes only four justices to grant certiorari, tea-leave-readers believed this showed that other conservative members of the Court (Scalia, Alito, Thomas and Roberts) didn’t have confidence that Kennedy would vote with them.
The optimistic view is that the Court has allowed litigation and legislatures around the country to marinate on the subject and is now primed to take the temperature of public sentiment, which has swung markedly in favor of marriage equality. But there is something tautological about that theory. If Kennedy never really intended Windsor to create the foundation for a federal, constitutional right to gay marriage, then the rulings by numerous courts that have relied upon Windsor to affirm such a right may be suspect.
A more pessimistic view, one that I hold, comes from the two questions certified by the Court when it granted review in Obergefell v. Hodges (in which conservative jurists on the Sixth Circuit Court of Appeals distinguished themselves as being the only appellate court to uphold state bans on same sex marriage): First, do the Equal Protection/Due Process Clauses of the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And second, does the Full Faith and Credit Clause require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
My humble prediction: Kennedy will say “no” to the first proposition, and “yes” to the second. In fact, there would be no need for the second certified question if a majority of the justices were prepared to affirm the first proposition.
And the silver lining: the Full Faith and Credit Clause will, over time, bring marriage equality to all 50 states as married gay couples that recognize same sex unions relocate around the nation. In fact, using this Clause was always an alternative, some think stronger, basis on which to move the cause of marriage equality forward. It has the advantage of being incremental and less threatening. And it may avoid the type of backlash that the Court has experienced when it has federalized big, social issues, such as abortion in 1973 in Roe v. Wade, which we have been fighting ever since (and despite the fact that there was a move toward liberalization of abortion law before the Court weighed in and polarized the sides, some say even spurring the creation of the Moral Majority).
Maybe that kind of incremental progress of which he is the father is what Justice Kennedy really wants as his legacy.