Gay Marriage

John Roberts Urges Judicial Deference to Congress on Obamacare, Judicial Deference to State Legislatures on Gay Marriage

"In every case we must respect the role of the Legislature, and take care not to undo what it has done."


Credit: C-SPAN

In his majority opinion yesterday in the Obamacare case King v. Burwell, Chief Justice John Roberts invoked the legal philosophy known as judicial deference:

[I]n every case we must respect the role of the Legislature, 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 consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt.

Writing in dissent today in the gay marriage case Obergefell v. Hodges, the conservative chief justice adopted an equally deferential posture:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us….

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

I lost count yesterday of the number of liberals who cheered Roberts for his "principled" act of conservative judicial deference. I guess we'll have to wait and see how many of those same liberals celebrate Roberts today for wanting the Court to practice judicial deference two days in a row.

NEXT: Martin O'Malley and the Liberal Hawks

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  1. The man sees himself as the guiding light. Rather than showing humility and deference, he reveals his ego. He has no apparent principles other than what he feels is best for the situation.

    1. He is consistent. Consistently unprincipled.

  2. “But this Court is not a legislature.”

    Roberts is an idiot.

    1. And I say that because he acted *exactly* like a legislature in yesterday’s opinion. He didn’t defer to Congress in the King opinion…he effectively re-wrote the legislation for them. He took legislative powers on himself.

      1. It was a 6-3 vote. Do you think the opinion would have been better had it been written by Sotomayor?

        1. Better? Nah. Though perhaps more coherent.

      2. Yeah, this is the second reason article today about Roberts’ alleged judicial deference yesterday in King. It takes Roberts’ assertion about his deference on face value when the plainly obvious reality is that his decision in King was not deference nor restrained whatsoever, but was in fact activist.

      3. He deferred to the Emperor Obama, the first of his name.

      4. How else was the lawsuit to be resolved?

  3. What’s it called when you don’t care about judicial deference but instead want the Supremes to strictly interpret and adhere to the Constitution? I kid. I kid. That train left the station long ago.

  4. first! cool. dont i recall an article from a week or two ago about how the court is upposed to protect us from the tyranny of the majority?

    1. The first rule of the Hampersand is never to claim a first. The Chief Justice’s words today on hubris are suddenly even more poignant.

    2. Roberts pissed all over that notion.

  5. Definitely a good week for you Damon – as I was reading the Roberts dissent I was thinking about your book and its discussion of the history and impact of Lochner. Nice job.

  6. There is no federal law behind this decision. How does the court expect this to be enforced? If a court clerk refuses a license to a same sex couple what law has he broken? Will he be arrested for contempt? How can a federal court order a state to isue any kind of license? What if a Republican President orders the DOJ to not enforce the ruling?

    1. This is one reason why I, and many other Libertarians, want the government out of the marriage licensing business, period. As that will not happen, I would contend that if a clerk refused to issue a license to a gay couple, that person would be fired for discrimination, or open the local government up to a discrimination lawsuit. It would be the same as a clerk refusing to issue a license to an interracial couple, which was ruled by Supreme Court in Loving v. Virginia. I don’t believe any specific law was enacted after that ruling, just that the government may not discriminate. Same applies here.

      1. Fired by whom? For what (if the state hasn’t turned this ruling into regulation or law)?

      2. To be honest, I think you have it backwards. I see no reason why a religious clerk is giving out legal marriage licenses. Separate legal marriage from ceremonial marriage.

        So a when a couple goes to get married, prior or after the ceremony they sign the legal documents with the government, lawyer or etc and they are officially married as far as government is concerned. And then religious ceremony can do w\e they want.

        In this way, a christian clerk can easily deny a gay couple if they wish on religious grounds. Because they are not doing an official service.

  7. Roberts is an appallingly bad justice. If all you do is defer, then WHY ARE YOU THERE? Yeah, I get it. Everyone needs to collect a check and this looks better than a Freedom Card.

    You could stay at home and jerk off to midget lesbian porn all day and have the same effect.

    1. No, the effect is much messier with his court decisions than the jizz and dooky from his pr0n fetishes.

  8. “But this Court is not a legislature.”

    It’s not a court either, it appears. Courts aren’t rubber stamps of “Sure. Whatever. Who gives a fuck?”

    it could be a hat or a brooch or a pterodactyl. That might be useful, if not at least entertaining.

  9. Roberts did NOT defer to Congress on Obamacare, he deferred to the executive.

    1. He didn’t do that either. He decided what the contentious provisions of the statute meant, based on what he thought its drafters meant.

      1. Well, maybe, but Congress didn’t draft it.

        1. OK, then. He examined the deliberately obfuscated provisions of a bill written by odious lobbyists and third-rate MIT economics professors, speculated wildly at what he thought they were trying to hide, then rewrote the law before rubber-stamping it.

          John Roberts is a copy editor, not a judge.

  10. “In every case we must respect the role of the Legislature, and take care not to undo what it has done.”

    Apparently, the SCOTUS Chief Justice doesn’t believe in Judicial Review. I guess all that stuff about check and balances I was taught in school was nothing but applesauce.

  11. For some reason this really makes me think of woodchippers.

    I don’t know why.

  12. Kennedy argued for deference to the state legislatures on DOMA, of course he was just obscuring the idea that all institution in the country should defer to his tortured, result oriented arguments.

  13. Judicial deference = removing a check and balance. Why bother having a Supreme Court if they plan on simply rubber-stamping everything the executive and legislative branches come up with? What Roberts has done is ten times worse that the blatant politics of the liberal Breyer/Kagan/Sotomayor/Ginsbert coalition, who just mindlessly rubber-stamp whatever the government wants. He has opened up disastrous new forms of abuse for the legislative and executive branches to exercise.

    All these idiots on the Left braying “Victory!” on Obamacare had best start thinking about the monster they’ve unleashed, it will turn on them. Just wait until shining intellects in the GOP like John Boehner come up with vile, obfuscated legislation that the SCOTUS “reinterprets and defers” to get rid of Roe vs. Wade, ban unions, give corporations monopolies, or destroy something else the libs love.

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