With many cases before the Supreme Court, while theoretically the questions are legal and/or constitutional ones, in practice there is frequently a question of whether the liberals or the conservatives will triumph. There are, at this time, four justices appointed by Democratic presidents known as the liberals, and five appointed by Republicans presidents who are considered conservative. But all it takes is one of those five to join the liberals to make a liberal victory, and that has managed to happen quite a number of times, though certainly not always, these past few years.
Now, the latest updates on cases we talked about this past semester.
1. OBAMACARE: That wasn’t a constitutional question, but rather, one of rather a glitch in the wording of the law should be construed as prohibiting the federal government from giving subsidies for health care to people who live in states that don’t have their own state exchanges. In that case, two of the Republican appointees, Anthony Kennedy and Chief Justice John Roberts, voted with Justices Ginsburg, Breyer, Kagan, and Sotomayor to allow Obamacare to continue undisturbed. The Republicans in Congress, of course, are fuming. Conservative dissenters on the Court are Justices Thomas, Scalia, and Alito.
2. SAME-SEX MARRIAGE: Here, only one Republican-appointed justice joined the liberals, and that’s Kennedy. Using the 14th Amendment (“No state shall…deny any person within its jurisdiction the equal protection of its laws”), five justices ruled that all states have to license and recognize the marriages of same-sex couples. As you’ve heard me say in class, this represents the most dramatic change in both law and public opinion that I have seen in my lifetime, because I was already teaching at a time when some states still had criminal laws against homosexual relations (sodomy), and the Supreme Court was not yet willing to interfere. Now, the Supreme Court is not even letting a state say “if you want the full benefits of marriage, move to another state that grants them.”
See my earlier post on another case we discussed, the question of whether Texas had the right to refuse to put the Confederate flag on customized license plates. On that one, it was Justice Thomas, who is both conservative and African-American, who voted with the liberals.