Now that the weekend’s celebrations over the Supreme Court’s legalization of gay marriage in all 50 states is over, it’s time to concede the point.
When Obergefell hit the docket, the votes of 8 of the 9 justices were foregone conclusions. Whenever any case with partisan implications hits the docket, the votes of 8 of the 9 are, with few exceptions*, foregone conclusions. Thomas, Alito, Roberts and above all, Scalia are more reliable Republicans than the love child of Ted Cruz and Jeff Sessions. Similarly, Ginsburg, Sotomayor, Breyer and Kagan are all about as surprising with their votes on these cases as Bernie Sanders.
It really would be accurate to put and (R) after the name of five justices, and (D) after the names of the other four. (Kennedy, of course, represents that one unpredictable RINO squish that conservatives hate and liberals mistrust; no creature in Washington is more despised these days than a moderate.)
So conservative agitator Andrew McCarthy is absolutely correct when he states, regarding the liberal four votes on the gay marriage case and on the latest Obamacare case, “There was never a shadow of a doubt… They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.”
But, unsurprisingly, McCarthy is silent on the fact that his four guys are just as predictable. On partisan issues, usually the only vote that matters is Kennedy’s; and when he swings McCarthy’s way, such as with Citizens United, or today’s death penalty ruling, McCarthy will not shed a single crocodile tear about the politicized nature of our court.
The law has always been a flexible, human thing, and votes often reflect the mores of their time. Plessy v. Ferguson was informed by the high tide of Jim Crow during which it was decided; similarly, the opposing Brown v. Board of Education decision came down the way it did partly because Jim Crow was finally beginning to retreat. But today’s SCOTUS does more than let the culture or general political climate color their decisions. They let short-term, nakedly partisan concerns dictate them.
Consider the starkest example yet: Bush v. Gore. In this 5-4 decision, the Republican justices just happened to find legal arguments that installed the Republican candidate in the White House, and the Democratic justices just happened to find legal arguments that went the other way. As with Obergefell and as with Citizens United, they first cast their votes based on their desired outcomes, and then instructed their law clerks to find legal contortions to justify their votes while they went golfing. They all just wish to legislate as opposed to commit themselves to the boring constitutional duty of just interpreting the law. And both sides should be ashamed.
I’m at least willing to admit that, even if the decision swings my way like Obergefell did. I do not expect any conservative writer to do the same when the next 5-4 decision breaks their way, even (or especially) if it results in installing another Bush in office in 2016 by judicial fiat in defiance of the popular vote.
*the most obvious exception being Roberts’ strange patronage of Obamacare. No legal observer of either side has ever been able to satisfactorily explain this rank heresy by an otherwise lockstep Republican soldier.