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So the Judicial branch in the USA is now also a Legislative branch?

Seems like the US Supreme Court is now in the business of changing laws rather than ruling on what they actual say. Or am I missing something?

57 comments to So the Judicial branch in the USA is now also a Legislative branch?

  • Bod

    The majority in SCOTUS believe they can now see deep into the souls of Congress and have the power to interpret what Congress was trying to achieve.

    They’re deeply empathic, helpful people, who just want the best for loyal Americans, and who are the Supreme Court to stand in the way of progress just because some literal interpretation of the language of the ACA might be considered unconstitutional. Even thinking such a thing is so unhelpful.

    Tar, feathers, etc. Oh, yeah, and hoist that black flag before they ban THAT too.

  • Nice Republic – while it lasted. Ah. Well. At least they are slowly doing away with Prohibition.

  • Bod

    Prohibition’s alive and well in most of the world’s banana republics. That which can be relaxed can be reimposed just as fast.

  • Fraser Orr

    They have been doing this for years — look at what they have done with the Constitution where the second amendment someone doesn’t let people always keep and bear arms, and the fourth amendment somehow ensures their right to an abortion, and the tenth amendment somehow doesn’t mean anything.

    However, what has been dreadfully missing in this whole discussion on this case has been the source of the problem in the first place — namely that it was jammed through congress in a very dubious fashion, with Pelosi’s famous statement that we have to pass the bill to see what is in it. It is that fact that the bill had no scrutiny that is the reason for the whole mess in the first place.

  • Bod

    And indeed, Roberts specifically cites the earlier Act to shore-up his interpretation of the section he was reviewing.

    It’s been an awfully bad week for freedom and truth in the US.

  • Jerry

    F.O. is correct.
    This has been going on for a long time – nobody was paying attention – that’s all !!
    The 1st amendment has been used to ‘justify’ everything from flag burning to child pornography but somehow ‘shall not be infringed’ in the second amendment is a ‘trick phrase’ that doesn’t really mean what it says !!

    As for how this wreck was jammed through, anyone notice the VERY SAME WORDING was used to try to pass the ‘trade agreement’ bill ??
    They have now gotten away completely with this method of BSing a bill through so expect more of it – especially for the next 16 months or so

  • RRS

    Well, if he were still here, Mencken might say:

    WE have the President we deserve and the results we deserve.

    We have, and have had, the legislators we deserve and the results we deserve.

    But now, do we really have the Judiciary we deserve?

    Quite possibly.

  • George Atkisson

    Welcome to SCOTUSCARE. Formerly ObamaCare. Given the domestic scrutiny of the IRS and the alphabet agencies, there is a very strong suspicion that certain members of the Court were “chatted up” prior to the ruling.

    Besides, no proper thinking person wants to be on the wrong side of The New York Times.

  • llamas

    And so the plan marches on . . . .

    Remember, the whole idea is for Obamacare to fail. The math simply cannot work for more than a few years – there’s not enough money to borrow to prop up all the promises and the subsidies as the pool of the ‘insured’ gets steadily larger and the pool of ‘premium’ payers gets steadily smaller. This year’s premium hikes are just the tip of the iceberg, the rate of non-compliance can only go up and eventually the whole iceberg will flip upside down.

    The insurance companies and hospital systems that have been giggling like loons over a couple of good years funded by all the people forced to buy their product are going to wake up one morning and find that the money done run out, outgoings exceed incomes by a factor that even the Feds can’t paper over anymore and – phut. The party’s over. And make no mistake – they will be blamed for the failure, for every single part of it. And then the only cure that will be offered to the millions of people who have now based their whole life around the idea of ‘free’ healthcare will be – government run single-payer. And they will vote for it in their millions.

    Who’s going to stop them? John Boehner? Mike Huckabee? It is to laugh.



  • Paul Marks

    First (in the first big Supreme Court Obamacare case) the Supreme Court declares, de facto, that the Constitution does not matter.

    Now it declares that what the Statute says (seven times) does not matter either.

    The Statute (the unconstitutional Statute but let that “little” thing pass) declares (seven time) that only States with State Exchanges will get Obamacare subsidies.

    This was explicitly cited by the people who wrote the Act as their carrot to get States to set up State Exchanges – set up State Exchanges or you do not get Obamacare subsidies.

    Now we are told that what the Statute says does not matter because…..

    Well because John Roberts and co, wished the Statute had said something else.

    Judges appointed by the very government they are supposed to limit was never likely to be an idea that worked in practice.

    Unelected judges sitting without a jury.

    Have that and you will get a Roman Law type result – if the judges have no sense of honour (and they clearly do not have a sense of honour).

    The Emperor (Barack Obama) want the law to be X – so the law is X (regardless of what it actually says).

    Sir Francis Bacon is rejoicing.

    And Sir Edward Coke and Sir John Holt are enraged.

    A fundamental misunderstanding of the Common Law is that judges pull law out of their backsides.

    Actually Common Law judges attempt to find (not make – find) law by following defined rules of conduct.

    By throwing all these rules away “Justice” Roberts and co have resorted to the search-ones-backside method of law.

    So there we have it – this judgement (like so many other judgments now) is backside law.

  • Thailover

    “Or am I missing something?”

    No, you got it right, and Judge Roberts is a shill/mole.

  • rxc

    The Democrats (read Obama) have something that they can hold over Roberts to get him to vote the way that they want.

  • jeffrey collins

    It’s been that way for a while. They just aren’t usually so brazen about it.

  • The majority in SCOTUS believe they can now see deep into the souls of Congress and have the power to interpret what Congress was trying to achieve.

    Bod, you make the error of assuming Congress-folk have souls.

  • Mr Ed

    The Supreme Court has just become the European Court of Justice in all but name and geography.

    Here is the judgment: http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

    The majority opinion ends with some fine Doublespeak.

    Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isola- tion,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994). 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.
    5The dissent cites several provisions that “make[] taxpayers of all States eligible for a credit, only to provide later that the amount of the credit may be zero.” Post, at 11 (citing 26 U. S. C. §§24, 32, 35, 36). None of those provisions, however, is crucial to the viability of a com- prehensive program like the Affordable Care Act. No one suggests, for example, that the first-time-homebuyer tax credit, §36, is essential to the viability of federal housing regulation.
    Cite as: 576 U. S. ____ (2015) 21
    Opinion of the Court
    Reliance on context and structure in statutory interpre- tation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939). For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.
    In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legisla- ture, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
    Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is con- sistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Con- gress’s plan, and that is the reading we adopt.
    The judgment of the United States Court of Appeals for the Fourth Circuit is

    And in the UK, we have the affront of Pepper v Hart as a case permitting judges to consider what is said in Parliament in interpreting statute, (really what MPs who are Ministers say, not ’mere’ MPs), and the whole ‘purposive’ drive of EU law.


  • staghounds

    Llamas is exactlly correct.

    He leaves out the interim step. After Obamacare collapses our already fraudulent budgets, the insurers will be found “too big to fail” so their operators will be bailed out in a nationalisation scheme. THEN, single payer.

    And to adapt Judge Kosinski, The sheer ponderousness of the opinion—the mountain of verbiage it must deploy to explain away these five short words of text—refutes its thesis far more convincingly than anything I might say.

  • JohnK

    Given that the NSA has access to every email, phone call and website visited by the Supreme Court Justices, you can safely say that the US Constitution is now a dead letter. You can have a coup without tanks in the streets.

  • Eric

    No, you’re not wrong. They’ve been working things backwards for years. The difference here is they stopped pretending – “We’re ruling this because we can.”

  • Disillusionist

    This isn’t original, but I forget who said it (pretty sure it was someone off National Review: Every bill/law Congress passes should simply include the phrase “and goodly people shall do goodly things in a goodly fashion”. SCOTUS will then have perfect justification for twisting and turning the language of any legislation to achieve whatever they think the desired end goal was supposed to be.

    Wait – they’re doing that already? Goodbye America – it was a nice experiment while it lasted.

  • mojo

    Gave over.

  • Laird

    It’s certainly possible that the Obama administration has some nasty dirt on Roberts, but the more likely explanation (applying Occam’s Razor) is that he’s a spineless weasel who doesn’t want to be yelled at again by Obama. He’s probably still stinging from the rebuke he received over the (correctly decided) Citizens United decision at the State of the Union Address about four years ago.

    Roberts’ opinion should be an embarrassment to every serious lawyer. (Scalia rightly excoriated it in his dissent.) Roberts completely turns the fundamental tenets of statutory construction on their head (and citing recent Court precedent as justification is bootstrapping of the first order). It is axiomatic that a court is supposed to give words their natural meaning if at all possible. Only if there is ambiguity (legitimate ambiguity, not the trumped-up sort he manufactured here) is a court supposed to resort to “interpretation”, looking at the legislative history, etc. He glossed right over that to achieve the result he wanted, and of course the liberal wing of the Court was only too happy to go along.

    But I don’t know anyone who is truly surprised by this decision, only disappointed. Roberts showed his true colors long ago.

  • Laird

    Oh, and I agree with RRS: we have the government, and the courts, we deserve.

  • Veryretired

    I left a comment at Chicagoboyz about this situation, but that was for a domestic readership, so here is a somewhat different variation for non-Americans.

    The average citizen here is extremely law-abiding, from traffic to paying for things to taxes. This attitude rests on the acceptance of the validity of the law, and a general respect for the justice system, even if there is some healthy suspicion about the police, and a pretty widespread opinion about the moral status of lawyers as being mostly for sale.

    This general atmosphere of respect for the law disguises a very real anger, simmering right below the surface of cooperation, at the continuing use of legal tricks and political chicanery to place upon working, family raising people all sorts of obligations, mandates, and restrictions that they deeply resent, and, privately and publicly, complain about in very serious terms.

    The very real fact that the ruling elites just can’t seem to get in their heads is that the entire political, social, and economic structures of the country depend on the willing agreement and cooperation of the working middle class with the perceived legitimacy of those structures. If that perception fails, then the structures collapse.

    Given their suicidal incompetence, it doesn’t surprise me that the same elites who praise any form of protest, and even riot, if they approve of the cause, or sense a political gain can be made from the unrest, have legitimized the very protests and unrest that, if undertaken by the productive segments of the populace, would quickly bring down the very legal and cultural systems they rely upon to enforce their vision of how everyone should live.

    Progs and their allies endlessly criticize and lord it over the red-necks and stupid religious people and others who make up the great bulk of the ordinary citizenry who live in “fly-over” country, being especially caustic when it comes to the peoples’ simple-minded patriotism and desire to own weapons for hunting and self-defense.

    Somehow, and I suppose it’s just as well, it doesn’t seem to penetrate the elite consciousness that those same attitudes, in restraint, are the foundation blocks which keep everything running, and, if freed from the restraint that law abiding respect for our political structures provides, would quickly and vigorously lead to the elimination of those very same elites by some very angry people who no longer gave a crap about legalisms and social convention.

    I move, and have lived, outside the elitist bubble of “important” people and their media and cultural hangers-on. They should have lunch sometime with the guys I’ve known all my life. Interview some of them for the news and talk shows. My hunch is, the more they listened, the more frightened they would become, maybe even to the point that they might start to understand how dangerous their situation is becoming, and has already become.

    Perhaps a quick review of those pictures of Il Duce after the mob got through with him and his whore would give them an inkling of what might very well be in store for elites who forget who does the work, and pays all the bills. Or not.

  • Jacob

    “This has been going on for a long time – nobody was paying attention – that’s all !!”

    This has been going on ALWAYS. There is no other way, no other possibility. Laws need to be interpreted, and are interpreted by the judges according to their personal understanding, i.e. in an arbitrary and random way. It cannot be otherwise.

    People are frail, irrational, queer. People are not GOD. The perfectly reasonable person is an imaginary construct, an utopia.
    And laws are made, interpreted and implemented by people, not by GOD.

    Obamacare is not different, in principle, from Social Security, Madicare or Medicaid. This is the real world we live in. This is what the majority wants.
    The Roberts court did nothing unusual, nothing new, nothing particularly appalling. It did what the court always does.

    I also think this SC decision is correct. It upheld the law.

    If someone dislikes the law, he needs to repeal it by the legislative process, not rely on the poor judges to undo it.

  • gongcult

    I am scared. What’s a libertarian to do now .in these dangerous times ?

  • I also think this SC decision is correct. It upheld the law.

    No you are wrong, it did not ‘uphold’ it, it rewrote it. I do not think you understand the nature of the discussion or the issue. Scalia does however.

  • Mr Black

    Veryretired, I don’t think the political class is in any danger at all. If there were to be any kind of rebellion against this rule it would be quickly squashed and the rebels would be tarred by the national media as racist rednecks. 90% of the populace, uninvolved and ignorant, would be happy with that view and go on about their trivial lives.

    And as I’ve noted before, those on the right, especially those playing as libertarians are quick to call for a revolution, but they won’t hurt an ant themselves and they will attack anyone who actually starts the violence as being irrational and crazy.

    Who then is going to be taking up arms? And who will they be killing? When there are good answers to these questions, perhaps the time will be near for it to actually happen. So long as the “rebels” on blogs think talk is going to solve things, the political class is completely safe.

  • Mr Ed

    The credit bubble of the Federal Reserve is to the United States what Marshal Tito was to the Socialist Federal Republic of Yugoslavia, the glue that kept the show on the road. One by ‘sweet money’ (to borrow the term from the 1970s Argie junta) and the other by force and terror. Tito perished, having been progressively butchered by his surgeons as gangrene spread, the British press reported on this at the time in great detail. It took time and perhaps other events for the glue to fail, but fail it did, as we all know.

    For the USA, then the credit bubble finally pops and the unedifying uneconomic reality underneath reveals itself, what would you have? A cobweb of costs imposed from the District of Columbia that cannot be covered or met, then perhaps the economically rational States will be emboldened to talk and then act to ensure that they are not sucked down as the irrational States flounder. The USSR collapsed almost like a portable tent (in comparison to other groaning, accursed slave empires) (c) Auberon Waugh. What will the far more civilised United States (an organisation, not a place, in my mind) do?

  • Jacob

    “No you are wrong, it did not ‘uphold’ it, it rewrote it.”

    No, the SC accepted the claim that there was an inadvertent error in formulation of the law, and agreed to correct it, as it was slight. It agreed to correct it without returning it to the legislature. It is a perfectly correct and reasonable ruling.

    We don’t like the Obamacare law, ok. But it is silly to try to repeal it by judges on such flimsy pretexts. It has to be repealed by the legislature, on it’s merit, or by the SC only if there is a fundamental violation of the Constitution.

    I think the “mandate” (to buy insurance) is a fundamental violation of the constitution, but that was not the issue in this ruling. (It was in the previous ruling, which was indeed very bad).

  • What Jacob said. This is what Roberts does, like it or not: he shifts the burden of legislation back to the legislators.


    If that perception fails, then the structures collapse.

    A feature, not a bug, for some among those elites, some of them are currently residing in the White House.

  • Mr Ed

    No, the SC accepted the claim that there was an inadvertent error in formulation of the law, and agreed to correct it, as it was slight. It agreed to correct it without returning it to the legislature. It is a perfectly correct and reasonable ruling.

    I am sorry but I see the error cluster of the month.

    an inadvertent error‘, as opposed to a deliberate error? Whether there is an error or not is immaterial, unless it is, say, a misprint or mangled wording that is obviously wrong.

    and agreed to correct it?’ Since when has a party before the Supreme Court been entitled to ask it to correct an error in the formulation of a statute? The Court’s function is to rule on the interpretation of statute and its constitutionality. If the statute is produces an undesirable result, let justice be done even if the sky should fall, and ask the Congress to correct it. One might ask if the majority had that in mind as an improbable outcome. An absurd result is what is to be avoided in interpretation, not an ‘undesirable’ result. If the Congress does not want undesirable outcomes, it should read what it is passing more carefully.

    ‘without returning it to the legislature’ Since when has the said Court been entitled to return legislation to the legislature? That is what the President does if vetoing a bill, all legislative powers rest with the Congress. I see no mandate for this in the Constitution.

    ‘it is a perfectly correct and reasonable ruling’ No, it is a rambling discourse pretending that the State is the Federation. If it were plain that the judgment was right, 3 or 4 succinct paragraphs would have sufficed to point out the errors in the appeal. Instead we got an admission of a strong case and a convoluted explanation that a 12 year old should be able to see through.

  • No, the SC accepted the claim that there was an inadvertent error in formulation of the law, and agreed to correct it, as it was slight. It agreed to correct it without returning it to the legislature. It is a perfectly correct and reasonable ruling.

    Well yes, if you do not actually think the rule of law matters, sure. As I said I do not think you understand what Antonin Scalia understood just fine. Clearly to you and the majority of the SCOTUS words means nothing, what laws actually say means nothing. In fact and in effect the SCOTUS is now a legislative body.

  • Jacob

    “The Court’s function is to rule on the interpretation of statute and its constitutionality.”

    This is what they did. They ruled that the word “state” can be interpreted to include also the federal government. Nothing wrong here.

    Perry and Scalia say: no – this interpretation is wrong. Well, you are entitled to your interpretation, but Roberts thinks differently, and he is perfectly entitled to HIS interpretation.
    That is what SCOTUS always did, and was created to do: to rule on cases where different interpretations are possible.

    Since when has the said Court been entitled to return legislation to the legislature?

    Since always. They are entitled to strike down any law, in which case it returns to the legislature, which can correct it (or drop it).

  • Mr Ed

    So Jacob, when you have stopped trolling, if ‘State’ means ‘Federal Government’ then the Congress, Supreme Court, Presidency and all Federal agencies can be abolished as superfluous as the State can do them as well. Wonderful, we have a solution to the Federal Debt crises and tax/regulation burden.

    Since when has the said Court been entitled to return legislation to the legislature?

    Since always. They are entitled to strike down any law, in which case it returns to the legislature, which can correct it (or drop it).

    No, the law does not ‘return’ to the legislature, it becomes ineffective if unconstitutional. If you don’t know that, perhaps you might try reading a decent bit of constitutional theory.

  • They ruled that the word “state” can be interpreted to include also the federal government. Nothing wrong here

    Oh FFS.

  • Laird

    Jacob is completely wrong. Roberts violated every rule of statutory construction* in reaching this strained conclusion. (See my post at 4:25 AM above.) And in doing so he does immense harm to the rule of law. If a court can “interpret” away the clear meaning of words, which were not in the least ambiguous, then we no longer have the rule of law but the rule of judges.

    This decision is far more important than the mere question of whether or not some people receive a federal tax credit. (Frankly, that’s trivial.) It undermines the foundation of our entire system of jurisprudence. Future courts (at every level) will henceforth cite King v. Burwell as precedent for rewriting a statute to suit the judge’s preferences. It’s difficult to overstate the danger in that, or the importance of this decision.

    * In this context, “construction” is the noun form of “construe”, meaning to interpret. “Statutory construction” is the process by which a court properly interprets a statute. It is not something new; it is a fundamental principle of the Anglo-Saxon legal system.

  • Jacob

    “then we no longer have the rule of law but the rule of judges.”

    But it was always so.
    The “rule of law” is a theoretical, utopian construct. There is no such thing and cannot be, except in the rarefied world of abstract ideas. In the actual world “The Law” is what the judge says it is. ***It cannot be otherwise.*** There is no GOD above the judge to correct the judge.

    I’m surprised that people can claim that this trivial, unimportant and unremarkable decision is “the end of the world”, only because their hopes that the SC will strike down this part of a law were not fulfilled.

    The SC has systematically approved all welfare legislation since at least the Great Depression and Franklin Roosevelt’s days. Expecting the court to rule otherwise ignores almost a century of history, probably more. (I know little about the history of the SC before 1933).

  • Mr Ed

    Was there not a Chief Justice, Salmon P Chase, who ruled his own action as Treasury Secretary unconstitutional?

    For the appearance of bias, he ought to have recused himself, he did not, the rule of law was maintained.

    Funny how with all the fuss about a standing Army, no one seems to worry about a standing judiciary. There is a presumption that the judicial oath (which carries no sanction for breach as far as I know) somehow makes a man better. Well at least we can say we can show that it does not.

    There is no need for a standing judiciary, indeed, judges could be chosen by the parties as arbiters, or in precedent-setting cases, the Congress could establish panels to be allocated cases randomly (within expertise), and if a judge is an attorney next week, then there might be more consideration for the practical consequences of decisions.

  • Jacob

    “There is a presumption that the judicial oath somehow makes a man better.”

    We rule ourselves with the help of myths.
    Once it was believed that Kings were divinely nominated and inspired.
    The Pope is also divinely connected…

    Nowadays we have transferred the divinity from Kings to Judges.
    People find it difficult to accept a world that lacks some divine guidance.

  • Laird

    Jacob, the actual result of this decision is indeed trivial. But the process by which it was reached (the parody of “legal reasoning” utilized) is anything but.

    I don’t disagree that there have been a great number of wrong Supreme Court decisions since Franklin Roosevelt cowed the Court into submission with his “court-packing” threat in 1935. (Obama appears to have achieved the same result by merely yelling at Roberts, no actual threats necessary.) But those decisions generally turned upon erroneous or expansive readings of the language of the Constitution (the irrational and ahistorical application of the Commerce Clause as a federal jurisdictional basis for starters). What’s different about the Burwell decision is that it does violence to the judicial review process itself. Those cases broadened the meaning of “interstate commerce”; Burwell redefined “state” to mean “federal”. Essentially, it defined “black” as “white”. That you can’t understand the distinction is distressing.

    But it appears that you really don’t know much about the law, so I suppose arguing with you over this is pointless.

  • Jacob

    “Burwell redefined “state” to mean “federal”.”

    Well, the “federal” is also a “state” – using the generic meaning of “state” and not the specific USA meaning of states being a administrative component of the USA federation.
    It comes down to the interpretation of the meaning of a word, and the fact that you can’t see that the word might have more than one interpretation – is strange.

  • Jacob

    Taking the Salmon P. Chase case where he declared greenbacks to be unconstitutional (linked above): wikipedia says this:

    “The Constitution prohibited the several states from impairing the obligations of contracts. While the court found no similar constraint upon the federal government, it held that such an impairment would violate the spirit of the Constitution.”

    So, in this case, though Chase ruled in line with our ideological preference (greenbacks illegal) – he ruled not based on the letter of the Constitution, but based on his opinion of the “spirit” of the Constitution.
    Did he uphold the “rule of law”? No. He upheld the rule of unlimited power for Judges and their arbitrary (even if correct) interpretation.

  • mojo

    It is our decisions that define who we are. Roberts has defined himself. So be it.

  • Mr Ed

    the fact that you can’t see that the word might have more than one interpretation – is strange.

    The issue is the meaning of the word, not the interpretation of it. Meanings are objective, interpretations subjective. There is a Humpty-Dumpty interpretation of the meaning of ‘State’ in the majority judgment.

    However, if you are right, and the ‘State’ means the ‘Federal government’, the federal government and its legal canon may be dissolved forthwith, and nothing will change or be lost, so why not?

  • Fraser Orr

    See this is the sort of thing I dislike in these opinions. In the Gay Marriage decision Kennedy wrote:

    ‘No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”‘

    To be clear, I am happy for gay people that they have what they so long sought, however, I don’t think it is a good decision, I think it is twisting the 14th until it squeals, and is certainly not what the 14th was for. This is surely something that the states should have (and were) handling.

    However, it is the above quote from Kennedy that particularly bothered me. What he says may well be true or not, though to me it sounds like pompous claptrap, but the importance of marriage has absolutely nothing to do with its legality. Marriage is legal or not legal because of what the statutes say. This kind of prancing nonsense is in the realm of the legislature. It is their job to decide what the laws should allow, disallow, encourage or discourage. The job of the justices is to decide what that law means specifically with regards to the case at hand. Their job is technical in nature, not moral. Consequently it is entirely irrelevant how good and great marriage is from his point of view, what he should be telling us is what the law says and how it is properly interpreted.

  • Bod

    It’s Kennedy. If course it’s pompous claptrap.

    However, he’s the guy that usually gets to decide whether the SCOTUS, as a body, will beclown itself on a case-by-case basis. Although we now seem to have a confederacy (can I even use that word now) of fools in black cloaks fighting over who gets to drive the clown car, and who gets the bulb-horn.

  • Jacob

    “Meanings are objective, interpretations subjective.” ??
    That’s an idealization. In actual life the meaning is the interpretation. I can’t see a practical difference between the two.

  • Midwesterner

    Highlights from Scalia’s dissent.

    In his dissent, Scalia said “Having gone wrong in consulting statutory purpose at all, the Court goes wrong again in analyzing it.” – Which also pretty much sums up how the preamble to the Constitution was used to neuter the entire rest of the constitution.

  • Mr Ed

    not the specific USA meaning of states being a administrative component of the USA federation.

    Where is that ‘administrative component’ meaning in law?

  • Julie near Chicago

    First, a little bit about Words.

    They are slippery creatures and in the pens of the unwitting or the devious, they can show incredible elasticity. And in fact, it’s perfectly possible for two different people to utter the exact same sentence and mean nearly opposite things by it.

    (Example: I say “He should never have been born,” meaning I hate his guts. You say, “He should never have been born,” meaning that he’s too good for this awful old world.)

    It is also true that language naturally evolves, and as old words take on new connotations and even come to mean the exact opposite of what they once did, the writings of centuries past may need very careful reading by people who understand the earlier meanings, in order to understand them properly.

    (It’s very important to understand that there are at least three crucially important words in the Constitution that simply don’t mean to us now what they did to the Framers. They are the words “infringe,” “regulate,” and “commerce.” Admittedly O/T; just sayin’.)

    Now to the topic as such, namely, Has SCOTUS once again covered itself with what the cow left behind?

    King vs. Burwell: First, I haven’t read the actual decision, but at a stretch, one can argue that “State” in Friday’s decision included both the several States of which the U.S. is comprised AND the State known as the United States of America — but that is a stretch and very far from the natural reading of the part of the Act at issue, especially given the context in which it’s being read. And didn’t I read that the Court dragged out the abortion which is its own decision in NFIB vs. Sebelius as a supporting precedent?

    Homosexual Marriage: The proper decision would have been for the Justices to announce that the main body of the Constitution does not empower the Federal government to do anything with respect to marriage, nor does the 14th Amendment, and that therefore the Act is unConstitutional on its face.

    This is exactly the same thing that Roberts did in the first Obamacare case. If the law as written doesn’t pass muster, then rewrite it from the bench. If that requires rewriting it one way in part of the decision and the other way in the other part, so be it.

    Some argue that all this really means is that if a two people are married in some State, then all the States have to honor the marriage as legit, and should legal issues about the “marriage” arise, they must be resolved as if the couple consisted of a man and a woman. But surely even more importantly, it dictates to the several States that they must issue marriage licenses to homosexual couples: a positive command to the States.

    However, if State A, which disallowed homosexual “marriage,” must now recognize the “rights” granted to a “married” homosexual couple by State B — then can anyone explain why the same reasoning doesn’t apply when a gun-owner licensed for CCW in Virginia crosses the State of New Jersey with his piece in his pocket, on the way to Vermont?

  • Jacob

    About the decision on gay marriage which most libertarians do applaud:

    1. It is absolutely certain that no “right to gay marriage” is written in the Constitution.
    2. It is absolutely certain that the Fathers who have written the Constitution would NOT have approved of gay marriage.
    3. There is no federal law that bans or allows gay marriage. (It is the States that do this).

    So, the Judges absolutely did an act of legislating from the bench. NO doubt about that. That is what the Judges do all the time.

  • Julie near Chicago

    Yes. In short, there is nothing in the Constitution that empowers the Federal government to make laws regarding marriage. Period.

    Extending the 14th to cover things like Federal legislation of marriage is like extending RICO to the extent that if you carry around a grand or two in cash, you risk losing it till the end of eternity while the PTB try to find some grounds for charging you with money-laundering.

  • Laird

    I agree with Julie on this, and also with Jacob (excepting the last sentence). Finding gay marriage to be some sort of “fundamental right” protected by the 14th amendment is as much a violation of the meaning of the Constitution as was the finding of a “right” to abortion by an earlier Court. (And I support both, incidentally.) Neither is properly within the province of the federal government; both should have been relegated solely to the states.

    [And Jacob, in response to an earlier comment of yours, it is abundantly clear, in both the Constitution and in the Obamacare legislation, that the word “state” is there used in its quintessentially American sense, to refer to the quasi-sovereign entities we know by that name, and not in the larger generic use of that word to refer to a whole nation (let alone to our federal government). The proper term for that is “nation-state” anyway.]

  • Nicholas (Self-Sovereignty) Gray

    In computer programs, the number ‘0’ can be used as a program line number (I did this in BASIC). So the judges may be treating the pre-amble as a line 0 part of the Constitution!

  • Nicholas (Self-Sovereignty) Gray

    And let’s not forget- Kelo vs New London. 10 years back (so CATO tells me), the Supreme Court decided that American counties could resume private land for ‘the public interest’, even if ‘the public interest’ was simply to put up a shopping center and get more tax revenue for the county!
    Has the State (at ALL levels) actually been repealed or pushed back, anywhere?

  • Julie near Chicago

    Indeed, Mid.