"Inartful wording..."

[horselips]

That's how Chief Justice Roberts dismissed the latest challenge to the ACA's controversial phrasing. Without further weeping and gnashing of teeth, suffice it to say the Supreme Court made it clear that Obamacare - now SCOTUScare - was simply too big to fail, and unless the Congress and the President repeal the whole darn thing, it's here to stay. America voted for Democrats, America demanded bankruptcy and decline, an end to our "Exceptionalism," and our power, and replacing opportunity with free lunch. America got it. Quitrcher bitchin'. End of story.

But here's the real problem with this ruling. And it's aimed squarely at the Second Amendment. The Court made it clear that the actual words of a law mean nothing whatsoever anymore. Intent is everything, incompetence in drafting notwithstanding, and it will be the Court that determines intent. If there is any controversy regarding the wording of a law (or a Constitutional Amendment) the Court will decide the issue politically and not judicially. The silly and inconvenient notion of being "a nation of laws, not of men" is now history.

Behold now the Second Amendment. Never has the wording of anything been so controversial, so easily misunderstood - deliberately or innocently. As laws go, the Right To Keep and Bear Arms is surpassingly opaque. Ask a conservative, a moderate, and a liberal what it means, and you're likely to get 3 different answers. Never mind what it actually says, never mind the rules of grammar and sentence structure - we're way past that nonsense now. A future Court may, and probably will, rule that the great (bogus) goal public safety, like the ACA, is also too big to fail, that the Second Amendment is simply "inartful wording" and dismiss it.

[csmsss]

Oh, yes, SCOTUS decided that it had the final authority to rework poorly written law to suit its whims. Basically, Roberts et al. said the clear and unambiguous meaning of the wording in a law wasn't terribly relevant if they could rework it to wording more closely aligned to its desires. And, absurdly, it claimed the preternatural ability to divine Congress' intent in crafting legislation. Today is a truly black day for jurisprudence.

[BarryLee]

I’m not an attorney, but it does seem that they ignored the actual wording and focused on the intent of the law. However, doesn’t that work to our advantage? I can’t imagine that the intent of the Founding Fathers was for the citizenry to be denied the right to keep and bear arms. I also think we have to realize there always have been and always will be parameters that we exercise our rights within. Obviously the big debate is what exactly those parameters are.

[csmsss]

I’m not an attorney, but it does seem that they ignored the actual wording and focused on the intent of the law. However, doesn’t that work to our advantage? I can’t imagine that the intent of the Founding Fathers was for the citizenry to be denied the right to keep and bear arms. I also think we have to realize there always have been and always will be parameters that we exercise our rights within. Obviously the big debate is what exactly those parameters are.

No, it's a terrible precedent for us. You really aren't thinking about how this would be used by lower courts.

This wasn't really a decision about the constitutionality of ObamaCare, it was a decision about rewording specific language within it in order NOT to strike down an (ostensibly) poorly worded law. In other words, SCOTUS afforded itself the opportunity to be lawmakers. Lawmakers with no authority to do so, and no checks and balances upon them.

[2ndsojourn]

"The Court made it clear that the actual words of a law mean nothing whatsoever anymore. Intent is everything, incompetence in drafting notwithstanding, and it will be the Court that determines intent. If there is any controversy regarding the wording of a law (or a Constitutional Amendment) the Court will decide the issue politically and not judicially."

Yep, I agree. Just how far they'll go with this interpretation applying it to the 2A will be interesting to say the least. Sad....really sad.

ETA: We're screwed.

[csmsss]

And, further, it may not be the intent of SCOTUS to do this, but in its short-sightedness, it has effectively imposed the same duty upon lower courts to divine legislative intent in a law and rework it if the legislative intent isn't statutorily or constitutionally permissible.

[Tom Servo]

Obamacare - now SCOTUScare

Here are a few ground rules for this thread:

• we're going to call things by their proper names, not silly parodies. It's the Affordable Care Act.
• We are not going to get into a dicussion of healthcare.
• We are not going to get into free-floating, unrelated criticisms of the administration.

The potential legal issues are what concerns us. And boy, should they. I don't think I've read more chilling words from the Court in modern times:

In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

Imagine if they'd taken that tack in Heller. Yeah, we'd be in terrible shape. csmsss is absolutely right when it comes to the lower courts. They're going to take this as liberty, if not mandate, to interpret things however they see fit.

A lot of terrible gun laws deserve to be overturned because they violate the plain language and "most natural reading" of the 2nd Amendment. Heller and McDonald were decided along those very lines. Now those lines have been erased.

[Al Norris]

Originally Posted by Tom Servo

The potential legal issues are what concerns us. And boy, should they. I don't think I've read more chilling words from the Court in modern times:

Yes you did, Tom... Unless you didn't read/understand NFIB v Sebelius, where Roberts in no uncertain terms said that the Congress, when it used the word "penalty", could not have actually meant that word. They must have meant "tax".

King v Burwell is just more of the same, except, now it is the official line instead of a temporary aberration.

[JimPage]

It's official now. SCOTUS is political.

[Evan Thomas]

It's been political ever since the Senate refused to confirm Robert Bork. This is nothing new.

[Tom Servo]

It's been political ever since the Senate refused to confirm Robert Bork.

Meh. It's been political since the FDR administration.

[doofus47]

Tom Servo

Meh. It's been political since the FDR administration.

I'd guess it's been political since the first time there was a decision that created a winner/loser.
Personally, I feel it's a bad precedent b/c it a decision made on arbitrary grounds that interprets/forces interpretation to a poorly written piece of legislation. The precedent of action (if not jurisprudence) would be that the court can now just make up meaning to words to satisfy whatever whims they wish to satisfy, be they social, legal, moral or un-intended.

As a former English teacher, it just rankles my soul. I actually sympathize with the goals of the ACA and would love to see a well-written, well-structured, well-quantified ACA put into place. Unfortunately, this isn't it. Although I'm for the goal, I knew when Nancy Pelosi said "We have to pass it to see what's in it" that I was going to be enemies with the law that passed. Every high school student whose ever written a paper thinks they know what's in their paper. If the student expresses his/her thoughts poorly, then the student needs to accept a poor grade or re-write the paper until what they "know" is actually expressed. If your job is to write legislation and you can't write your legislation clearly enough to make it coherent, then you, like a high schooler who has written a poorly done paper, need to re-write your work. This was SCOTUS' moment to stand for standards and they fumbled.

It disappoints me immensely.

[zukiphile]

Originally Posted by d47

I'd guess it's been political since the first time there was a decision that created a winner/loser.

The Court has been political and served a political function from inception, or at least since Marbury. That's OK. You want the Court to be smart and effective. You also want it to adjudicate constitutional controversies.

It certainly became political to the detriment of it's legal/constitutional function following the invalidation of the NRA (not our NRA, but the National Recovery Act). The Court is going to draw on the political culture to one degree or another, and the other two branches of government had a deep desire to grossly expand the scope of federal government.

The unsubtle politicization that occurred in the Bork nomination made the Court political in yet another way; the Senate voted against Bork because they didn't like the way they thought he would end up on a number of issues. They didn't hide their political decision behind a façade of concern about constitutional doctrine (except for Arlan Spectre, whose performance deserved all the contempt it got). Lots of Senators just didn't like the winners and losers they saw at the end of Bork's pen. It is application of naked electoral politics to the choosing of justices.

The decisions of the last couple of days point to another very political development; in opinions that conspicuously disregard text and long held doctrine, the Court gets to where it wants to end up and puts up very little in the way of window dressing to conceal its result oriented jurisprudence.

One can argue about who benefits from that politically, but the Court ultimately loses the influence it would properly have from a sense that it stands apart from or above electoral politics.

[Koda94]

But here's the real problem with this ruling. And it's aimed squarely at the Second Amendment. The Court made it clear that the actual words of a law mean nothing whatsoever anymore. Intent is everything, incompetence in drafting notwithstanding, and it will be the Court that determines intent. If there is any controversy regarding the wording of a law (or a Constitutional Amendment) the Court will decide the issue politically and not judicially.

the Second Amendment is the only amendment with the words "shall not be infringed"....

I wonder, if it ever comes to it, how SCOTUS would redefine the intent of those words?

[osbornk]

What I found odd is that Roberts ignored the actual wording on the Affordable Care Act and went with what he thought the intent was and then today with the Gay Marriage ruling, he went the exact opposite way and said that the wording mattered. He seems to rule to get the result he likes and the words don't matter.

[csmsss]

What I found odd is that Roberts ignored the actual wording on the Affordable Care Act and went with what he thought the intent was and then today with the Gay Marriage ruling, he went the exact opposite way and said that the wording mattered. He seems to rule to get the result he likes and the words don't matter.

Roberts actually authored the dissent in the gay marriage ruling. Kennedy authored the majority opinion.

[Al Norris]

Originally Posted by csmsss

Roberts actually authored the dissent in the gay marriage ruling. Kennedy authored the majority opinion.

CJ Roberts authored only his own dissent.

There were four dissenting Justices. Scalia, Thomas, Alito and Roberts. All four dissenting Justices wrote an opinion. That is almost unheard of. For the first time, in his Court, Roberts read his dissent in open Court. That, and that alone, is noteworthy.

[Tom Servo]

Scalia's dissent is interesting, and I hope it's not prophetic:

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Roberts seemed to echo his concerns:

But this Court is not a legislature. (...) Under the Constitution, judges have power to say whatthe law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” [quoting the Federalist No. 78, p. 465]

I'll add the same request I made regarding the ACA. Gay marriage is outside the scope of this forum. What concerns us is...what the heck is going on with SCOTUS?

Let's not forget it took a Herculean amount of handwringing to get the RKBA barely recognized by them, and that's an enumerated right.

[Al Norris]

Despite the [flowery] language of the majority opinion, I find these quotes from the dissents instructive.

Originally Posted by Chief Justice Roberts

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

* * *

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

* * *

Originally Posted by Justice Scalia

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

* * *

Originally Posted by Justice Thomas

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

* * *

Originally Posted by Justice Alito

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

However you cut it, it does not bode well.

[barnbwt]

Almost makes you wonder why the four did not refuse to participate once they saw what the majority had planned. A 5-0 decision would reflect the abnormal nature of the ruling very effectively.

"What concerns us is...what the heck is going on with SCOTUS?"
I found a refresher on the history before, after, and behind the scenes during the Dred Scott v. Sandford ruling highly interesting with regards to Burwell. Scalia likes to bring up Scott as a pejorative, but the types of justifications for a tortured readings, the (at the time, but later explained by direct Executive interference) odd nature of the ruling found by one of the judges, and the extreme political & economic fallout at stake echo as much as history ever does.

Can we marry gun corporations, now? Colt seems like it could use some love.

TCB

[Aguila Blanca]

Originally Posted by BarryLee

I’m not an attorney, but it does seem that they ignored the actual wording and focused on the intent of the law. However, doesn’t that work to our advantage?

In my opinion, it does not work to our advantage.

I started out with the same thought -- if they can interpret the language of TACA to mean the opposite of what it says because of "intent," then they can also interpret the 2A based on its intent. The problem is, it only takes five justices who believe (or claim to believe) that the intent was to arm the militia, and the 2A is toast.

In the long term, it is far better (IMHO) for words to have meanings and for laws to be interpreted according to what they say, rather than what a judge or group of judges want them to say.

[zukiphile]

Originally Posted by barnbwt

Almost makes you wonder why the four did not refuse to participate once they saw what the majority had planned. A 5-0 decision would reflect the abnormal nature of the ruling very effectively.

Some of the most fun reading in the legal world is a Scalia dissent. I would hate for him to have passed that up. So would his clerks. Being permitted to write one of his bon mots is a much sought after privilege.

Thomas is also underrated, imo. He doesn't indulge himself with the sort of flourish Scalia does, but he is impressively direct, which carries a power of its own. His dissent in Raish, the thrust of which is this is what interstate means, and this is what commerce means, and this case isn't about either of those serves to show how far from the text the Court's interstate commerce doctrine has wondered.

He didn't win, but his illustration of why he became part of the ongoing conversation. I wouldn't like to have missed this dissenting opinions.

[tyme]

Al,

[Roberts and Scalia whining about SCOTUS activism] So Brown v. Board of Education, and Loving v. Virginia, should have been decided differently? After all, those forced integration down everyone's throat, removing that decision from the democratic process. Why not let the states that wanted to be patently racist continue to be so? Plessy and Pace had established, the century before, that, even post-reconstruction, there was no such right to be found in the Constitution. Where did the court find one in Brown and Loving?

[Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere.

[Alito: " deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."] If that's so, perhaps the SCOTUS should have a separate bench and separate bathroom for Thomas. Maybe they should employ children in 14 hour shifts to do some of the menial work that their overqualified law clerks have to do at present.

The court has swung wildly to the side of activism from time to time since FDR's court packing scheme. But they've also pushed social reforms that may not have happened nation-wide any other way. Maybe the social benefits aren't clear, because old habits and biases die hard, but I think there's a seriously up-hill battle trying to argue that many of these kinds of decisions weren't justified on the basic principle of equity.

I don't think any of the liberal justices would object to a law redefining and narrowing the marriage license, or creating an alternatively-named license, specifically for when a couple has or adopts a child, rather than before, explicitly spelling out child support and spousal support terms so that family courts can stop having to make such arbitrary and questionable decisions. The rest of the pro-hetero-marriage arguments are just some hand-waving about indeterminate social ramifications and, underlying it all, a strong desire to have the majority's religious beliefs keep defining marriage.

I think Chemerinsky wrote a good defense of the majority, regardless of what you think about his personal politics: http://www.scotusblog.com/2015/06/sy...-civil-rights/

All you need to agree with this decision is that, as the SCOTUS has repeatedly stated, marriage is a fundamental right. Strict scrutiny is a high bar that you can't meet with hand-waving and rhetoric about respect for tradition. It seems to me that the only way to meet it is to restrict marriage explicitly to child-rearing. That would not do what the conservative minority of the Court wants, either, since LGBT individuals can already adopt, and since it's legal for hetero couples to have children out of wedlock. Where would the Court's dissenting minority manufacture a compelling purpose for heterosexual-only reproduction licenses in light of those existing realities?

[zukiphile]

If a subjective sense of due process can invalidate a conventional state law, can a person also have a due process right not to be under constant threat of armed fellow citizens?

If a piece of federal law, the ACA, can be rescued from its own text by reasoning that Congress couldn't possible have meant what it wrote, what protection do the words of the 2d Am. provide?

Originally Posted by tyme

[Roberts and Scalia whining about SCOTUS activism] So Brown v. Board of Education, and Loving v. Virginia, should have been decided differently? After all, those forced integration down everyone's throat, removing that decision from the democratic process. Why not let the states that wanted to be patently racist continue to be so? Plessy and Pace had established, the century before, that, even post-reconstruction, there was no such right to be found in the Constitution. Where did the court find one in Brown and Loving?

Those comparisons are inapposite. Racial discrimination in law is met with strict scrutiny. Sex discrimination, the element at issue in the cases before the court, is not.

The Court here appears to have sidestepped that consideration with a due process rationale.

[Thomas: Liberty is freedom from government interference, not freedom to receive benefits] The government already hands out a variety of benefits under the umbrella of marriage, which are difficult if not impossible to get any other way. If there's a genuine equal protection or full faith and credit concern, complaining about the majority's interpretation of the concept of liberty doesn't go anywhere.

That is incorrect. An equal protection concern as it pertains to gender would ordinarily be resolved by examining whether the law in question was reasonably related to a legitimate governmental end.

Noting that the recent case is distinguishable from Loving because Loving involved a prohibition on freedom to act based on race is not trivial. In that case, the couple could not legally cohabitate.

No such restriction is present in the current case.

[Alito: " deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation."] If that's so, perhaps the SCOTUS should have a separate bench and separate bathroom for Thomas. Maybe they should employ children in 14 hour shifts to do some of the menial work that their overqualified law clerks have to do at present.

How would that address a compelling governmental interest? The answer discloses why that would not be permissible under SCOTUS doctrine.

Maybe the social benefits aren't clear, because old habits and biases die hard, but I think there's a seriously up-hill battle trying to argue that many of these kinds of decisions weren't justified on the basic principle of equity.

A nebulous sense of equity is not a constitutional principle.

I don't think any of the liberal justices would object to a law redefining and narrowing the marriage license, or creating an alternatively-named license, specifically for when a couple has or adopts a child, rather than before, explicitly spelling out child support and spousal support terms so that family courts can stop having to make such arbitrary and questionable decisions. The rest of the pro-hetero-marriage arguments are just some hand-waving about indeterminate social ramifications and, underlying it all, a strong desire to have the majority's religious beliefs keep defining marriage.

That is incorrect. The defense of the majority of state restrictions (sex, consanguinity, marital status (you don't get a license if you are already married)) rest in the articulation of a rational relationship between the law and a legitimate state interest.

I think Chemerinsky wrote a good defense of the majority, regardless of what you think about his personal politics: http://www.scotusblog.com/2015/06/sy...-civil-rights/

All you need to agree with this decision is that, as the SCOTUS has repeatedly stated, marriage is a fundamental right. Strict scrutiny is a high bar that you can't meet with hand-waving and rhetoric about respect for tradition. It seems to me that the only way to meet it is to restrict marriage explicitly to child-rearing.

No, there is a rational link between the class of people who can reproduce sexually and marriage laws that that make up a complex web of rights and duties amongst them and the state, therefore one need not have already had a child for the link to be present.


The problem for 2 Am. analysis that is presented by vague notions of equity or fairness or emotionally driven judicial results is that accepting that kind of free form jurisprudence serves to diminish the protection of an explicit right; it detaches the constitutional court from constitutional text and doctrine.

[Glenn E. Meyer]

I agree with Tyme.

Here's what I said elsewhere:

To me the issue is simple.

The state should keep out of people's personal business unless said business causes demonstrable harm (which does not include your aesthetic sexual preference). If the state wants to have some specific legal contracts on how couples form, it should be open to any type of consenting adult couple. The religious ceremony is not the state's business.

The issue is also one of discrimination and rights. Our society has decided that certain personal characteristics cannot be used in a discriminatory fashion (hence the protected classes - race, ethnicity, religion, national origin). Sexual preference is being added to list - and that's fine with me. I do not buy into that you have a right to discriminate in business and employment. You could disagree but tough. The person's rights trump you being the dictator of your business that is open to the public.

I regard a primary right as the right to life and the implementation of that through the right to self-defense. Thus, the right to carry guns is fundamental and all states should acknowledge that. Pragmatically, this means that all state licenses (if you have a license/permit system) should be valid throughout the USA. In the same vein, I disagree with the property rights of a business to ban carry if they are open to the public as they infringe on a basic right (as with discrimination) and that trumps their property rights.

Your home is different as it is not open to the public. Bans are only allowed for public places on technical grounds - no gun in the MRI, no tracers on the Hindenburg.

If the 2nd A. community was smart (haha) they would embrace this decision as one supporting personal liberty in the same vein as the decisions supporting the RKBA. In both, the power of the state to limit personal rights and choices is being constrained.

The state should keep its hand off your holster, out of your pants, minimize the dip into your wallet and let you eat whatever brownie you want.

I know that many want to parse legalisms but I opine that the opinions are first driven by the justices' core beliefs (focused by social beliefs, emotions and religion). Then they look for precedents and legalism to bolster their views. I've read scholarly analyses of such.

As I said above and before, Scalia is not an icon for me. His reasonable restriction blather is used strongly against us. His emotion this time is just that - emotion based on an underlying belief structure. I disagree with it.

We should take this opportunity to say that expansion of individual rights and removing the state from personal decisions (that do no overt harm) is to be celebrate.

The 4 liberal justices have a gut oppostion to guns. The 4 conservative justices have a gut opposition to gays. That's what focuses how they decide.

Kennedy has been seen as one who thinks about things a touch more deeply and also relishes his position as swing on the major issues.

Push the individual freedom. Folks who want to constrain adult behavior in one dimension and then wander around the mall with an AR-15 need to rethink the issue of control.