May It Please the Court: Social Change and SCOTUS

Ms. Maud pointed out one of the most fascinating aspects of the rulings of this past week: The apparent contradiction of Chief Justice Roberts, who sided with the liberals on Obamacare and issued a bitter dissent on gay marriage.

Mad Dog spent a worthwhile hour reading the actual texts of the Chief Justice's opinions and the text of Justice Kennedy's decision.

In the case of Obamacare, Roberts saw clearly past the clever arguments which convinced Justice Scalia: The Supreme Court's job is to clarify what the law is, especially when the Congress, which has the power to write the law is inept enough to leave something ambiguous. The clear intent of Congress was to improve and extend medical care,  not to destroy it, a simple observation Roberts used to destroy all the machinations of Justice Scalia who fastened on a few inelegant words to suggest what the Congress really had said was more important than what it clearly had meant to say.

"Words no longer matter," Scalia fumed, as if what is really important is the game rather than the effects of law on the lives and health of millions.

When you read Roberts on Obergefell, the gay marriage case, it's all about the court being humble and not legislating from the bench, not imposing on those states where the majority disapprove of gay marriage the will of "lawyers" i.e., the Supreme Court justices.  Until and unless the majority of people in a given state will gay marriage into being by voting for it, the Court has no business imposing a new definition of marriage upon them.  You cannot tell people who hold different opinions what to think. Roberts is profoundly uncomfortable with becoming the agent of change. He is, in that sense, one of the most conservative members of the Four Horseman. In that sense, he is entirely consistent and predictable, and siding with the intent of Congress on Obamacare is the conservative thing to do, while voting against gay marriage is the conservative thing.

Kennedy is more interesting.  Ms. Maud has suggested we might save a lot of time and effort if we simply presented cases to Justice Kennedy, since you know where the other eight justices are going to go before the votes. Kennedy is always the wild card.

In his opinion, Kennedy lays down his arguments carefully and forcefully and with great clarity. Injustice, he notes, is often unrecognized at the time; it is only once change has occurred how clear injustice had been. Thus was it with "separate but equal" when Black school children were bused to inferior schools. Brown vs the Board of education changed that and that change came from the Court after decades, generations of Congresses failed to right that injustice.

As Kennedy pointed out, the rate of change is important when it comes to injustice--justice delayed can be justice denied.  If we wait for the citizens of each state to come around, many lives could be lived and ended before justice is done and all those who were not given justice would suffer their whole lives. 

Kennedy builds his case by noting the fundamental attitude toward homosexuals underlies the resistance to allowing them to claim the "benefits" of marriage. Homosexuality was considered a disease, a deformity of character and homosexual acts were criminalized. It is not really that the Bible tells us homosexuals should be stoned to death that motivates the refusal to allow gay marriage but a fundamental revulsion to what homosexuals are and what they do. Kennedy claims this attitude has changed and laws should change with attitudes.

Tracing the history of the Court in cases involving intolerance and marriage, Kennedy notes state laws once forbid inter racial marriage and this was clearly an example of how hate found expression in marriage laws. The same can be said of hate and homosexuality and marriage law. Some people simply hate the idea of allowing other people to do what they want to do, to love who they want to love. As if it is any of your business who I love and how I express that love.

Kennedy asserts attitudes have changed across the country and the Court is  not really imposing a new attitude but reflecting that change.

This is is weakest argument. Attitudes have changed across the country, but not in all parts of the country. In Mississippi, Alabama, South Carolina, Gerogia, Louisiana attitudes have not changed and likely will not change among enough citizens to ever allow gay marriage. Even in Black churches, perhaps especially in Black churches, the very people who were hurt by the intolerance of others when it came to race, refuse to tolerate homosexuals.  Justice Roberts would say, well until those people have a change of heart, it's not up to the Supreme Court to force them to change their hearts and minds. Just Kennedy looks to past racism and says, "Oh, yes it is. There are times we have to bring people along and tell them their attitudes are unacceptable not as Alabamans or Baptists but as Americans."

When it comes to state laws, we must appreciate state borders are, after all, pretty much artifacts of history and they are anachronisms.  We told people in these states they could not do as they pleased, could not live in an antebellum world of delusion and hate and had to come along with the rest of the country into a new world of tolerance and justice, and, not entirely, but for the most part, forcing White Southerners to accept the humanity of Black Southerners was good for both.  As James Baldwin once noted, slavery hurt the master as well as the slave--it may have hurt the slave a lot more, but it did hurt the master.

The fact is, the White Dixiecrat South was a dark, festering abscess of hate and ignorance and the sunlight of enlightened tolerance, while it did not root out all the pockets of disease, did succeed in cleaning up most of it, and the country was the better for it.

From the Civil War onward, we have had the temerity to tell people in the South and elsewhere that what they do locally affects us all nationally. As Thoreau once observed, injustice anywhere is an affront everywhere; tolerating injustice and allowing it to burn in the basement or the attic threatens the entire house.

Something very similar is true for the hate and intolerance directed at homosexuals in the Bible belt. Once formal, legal protections are extended to this reviled underclass, the haters and their children will see tolerating those they find repellent does not harm them. They can live with people they may detest on one level and yet function and even find things they like about those nasty people.

Kennedy unabashedly embraces the idea that sometimes the Court, when it sees one group being oppressed by another simply has to take the lead in righting that wrong. It cannot allow the playground bully to subjugate and intimidate; it must act to protect those who are being beaten up.

For Roberts, the playground bully must be tolerated until he has a change of heart or enough of his classmates persuade him to behave more in a more civil manner. For Kennedy, there is a reason for a higher authority, namely the Court, to exert it's authority to intervene.