The high court and history

Lessons from the Obamacare, marriage rulings



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The last week of June often brings big news from the U.S. Supreme Court. This year was no exception, with the court, in rapid fire, issuing its Obamacare decision and its same-sex marriage decision on successive days.

While both decisions were important, they also were indicative of historic tensions between the judiciary and legislature and their place in the constitutional system.

In the Obamacare decision, the court, by a 6-3 majority, upheld a section of the Affordable Care Act that had been challenged by those who said that the specific language enacted by the Congress did not make tax credits available to individuals and states that do not have a federal exchange established.

The majority, citing the entire statutory scheme of the Affordable Care Act, said that certain language, while imprecise, should be read to grant the tax credit to residents of states with or without federal exchanges. Interestingly, Chief Justice John Roberts, whose opinion on the constitutionality of the Affordable Care Act, in a prior term, was key to upholding its validity, joined the majority.

In dissent, Justices Scalia, Thomas and Alito objected to the majority’s disregard, in their opinion, of the clear language involved and used rather startling characterizations of the reasoning of the majority.

In his majority opinion, Roberts showed a deference to Congress in writing laws that is clearly consistent with one long train of constitutional interpretation.

The next day, in the same-sex marriage decision, the court, by a narrower 5-4 majority, established the right of citizens of all states to same-sex marriage.

Using expansive language about the value of marriage to those who have experienced it, Justice Anthony Kennedy termed it the “foundation of society” and claimed that society’s understanding of it has expanded from one man and one woman to others.

In dissent, Scalia termed Kennedy’s description of marriage as being more fitting for a paper inside a fortune cookie than a Supreme Court decision.

Roberts was consistent in his dissent with his majority opinion in the prior case, again deferring to the role of the legislative bodies, in this case state legislatures, in defining what marriage means and how it should be defined in the laws of the states, where traditionally marriage questions have been defined, there being no mention of marriage in the U.S. Constitution.

These Roberts opinions are consistent with the theme that major changes in law should be made by the people’s representatives in legislatures and not by courts.

Indeed, in New Hampshire, the same-sex marriage decision was made by the Legislature and ratified by the popularly elected governor.

To have a decision of this magnitude made by a 5-4 court majority makes it more problematic, according to Roberts and that train of thought.

When courts make major decisions such as this or Brown v. Board of Education, the 1954 decision that made “separate but equal” illegal, then Chief Justice Earl Warren forged a unanimous 9-0 majority in outlawing segregation in schools. Even a nine to zero majority did not have the effect of eliminating the issue that in some degree or another still remains.

The framers of the Constitution seemed to have had the same idea when they put so much emphasis on Congress, covering its powers in Article 1, the longest Article
describing the branch of government on which they focused the most.

Article 2 is shorter but established the presidency. As to the judiciary, the framers wrote a very short piece in Article 3, which stated that there would be a Supreme Court and such inferior courts as the Congress might decide from time to time. That left it to Congress to design the judiciary, which it has done over the years since.

Nowhere in the Constitution was the Supreme Court given the power to decide disputes between the other branches or decide constitutionality. Obviously, there was a need in the system for that function to be performed. In Marbury v. Madison, the key case establishing judicial supremacy, Chief Justice John Marshall wrote the opinion that said that the Supreme Court had the right to decide the constitutionality of acts of Congress and actions of the executive. This decision was heatedly opposed by the Jeffersonian “Republican” Party, which believed that Congress should make the laws as representatives of the people. Indeed, Marshall was impeached by the House and acquitted by the Senate.

However, the doctrine of Marbury v. Madison survived. Nevertheless, the debate on the proper role of the judiciary has continued to this day and could be seen in the interesting and important decisions of the Supreme Court at the end of June.

Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups.

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