While my Republican brethren bray across the cablesphere about yesterday’s SCOTUS decision upholding Obamacare, I went a’reading to see what the long-time SCOTUS reporters had to say.
Writing about the majority opinion Linda Greenhouse wrote:
The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.
Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.
And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.
The Court didn’t rewrite the law. They just read it, as is their job.
Inside the majestic building housing the Supreme Court of the United States (truly a gorgeous building), the Justices yesterday ruled that the 35-foot buffer zone around an abortion clinic “violated protestors’ freedom of speech”. Outside that same building, the exclusion zone for protestors is 250 feet.
(PLEASE NOTE: Ginsberg is my favorite Justice – she’s smart and savvy and full of mischief.)
It’s futile to pretend any more that the Supreme Court is non-partisan. Justices are people (the human, not the corporate kind – at least not yet) and don’t have identical values or beliefs. Their perspectives – on law, history, social justice, the U.S. Constitution – are informed by cultural identity, ethnicity, education, religion and probably gender. This has always been true.
Of course a Court is, ideally, charged with rising above the personal and interpreting the law. But we don’t get ideal; we get nine mere mortals who must somehow work it all out and render ‘judgement’ on a legal appeal. (Note to Scalia: judgement involves judging. All things are not self-evident.)
Today’s Court isn’t doing too well with that ‘rising above’ thing. A lot of decisions are nakedly political and too much of the time we have 5 to 4 votes favoring the Right. Also:
- The 2014 elections could very well change the majority in the Senate.
- Justice Ginsberg is the oldest person on the bench and will be 81 in 2014.
- Justice Ginsberg, while mentally acute (unlike Scalia, the next oldest), is physically unwell and has had cancer more than once. Her health could decline further.
- A Republican Senate can deny Obama a majority on any Supreme Court nominee. (UPDATE: James reminds me in comments that confirming a Supreme still requires the ‘super majority’ of 60 votes, but still . . . )
- If Republicans take the White House and hold the Senate in 2016, that doesn’t bear thinking about.
She and Scalia have for decades enjoyed a close friendship, so perhaps they could make the leap together – before 2014. Solidarity and all. (A bit of trivia – after Reagan nominated Scalia in 1986, he was confirmed by a Senate vote of 98-2.)
She says she won’t be retiring during Obama’s term. Her call, but . . . look at the ages in the chart below . . . in 2017, four justices will be 80 or over (okay, Breyer will be only 79). I think that makes 2016 the most significant presidential election in decades. Whichever party wins could have the opportunity to replace four of Justices, especially if it’s an 8-year term. Perhaps five; Thomas will be 75 in ’21.
Right now, the Court is lopsided enough with six Catholics and three Jews. And three of them come from New York City – not just the State, the City – and two are from Trenton NJ in the same metro area.
- Kagan is from NY, NY (Manhattan)
- Sotomayor is from the Bronx NY
- Ginsberg from Brooklyn NY
- Scalia AND Alito from Trenton NJ
- and even though it’s not quite the same, Roberts is from Buffalo NY
Although I do think Ginsberg would look better is a very soft grey. (Hat tip cousin Jeff.)