Last week, Republican Presidential candidate Ted Cruz penned an op-ed for The National Review regarding the Supreme Court. In it, he proposes two solutions to the “lawless” “judicial activism” of the Court: a constitutional amendment to “preserve the authority of elected state legislatures” to pass laws discriminating against gay couples who wish to marry, and a constitutional amendment that would require voters to determine, every eight years, whether or not a Justice should keep his or her position. Although calls the Court’s recent opinions “untethered to reason and logic,” his own reasoning demonstrates that he might be the worst lawyer who has ever lived, which might explain why he only has four years of private practice under his belt, having spent the rest of his career suckling at the teat of the Republican machine.
In one of the few correct statements in this op-ed, an article in which Cruz proves an alarming amount of stupidity by conflating the U.S. Constitution with state constitutions, the distinguished Senator points out that the Constitution gives Congress the authority to impeach Supreme Court Justices, which has only happened once. Of course, Cruz also suggests Anthony Kennedy is the one who needs to be impeached, not Antonin “I even believe in the Devil… Yeah, he’s a real person” Scalia.
Ironically, Cruz suggests that “[l]iberty hangs in the balance” while ignoring that Justice Kennedy’s “swing votes” give him the only thing on the Court resembling a libertarian record. Cruz also rails against the King v. Burwell decision upholding the “Affordable Care” and “Patient Protection” Act without acknowledging that the usually far-right Justice Roberts sided with the majority, just as he did in 2012 in National Federation of Independent Business v. Sebelius, a case on which Kennedy dissented. Doesn’t this, just on a surface skim, demonstrate a teensy bit more complexity to Court decisions than Cruz sees?
Although the Court is often divided along ideological lines, its greatest virtue is the fact that the Justices don’t face elections. No matter how it appears to a career politician like Cruz, the Supreme Court is unburdened by the fear of getting voted out of office, a problem that is simultaneously destroying the effectiveness of Congress and ensuring a cycle of two-term Presidents who accomplish very little in their first six years, and then rush to try to change the world in their last two. Even that “freedom” in the last two years, which sometimes looks an awful lot like honesty, is little more than free advertisement for the Party’s next candidate. “If you like all the things I’m saying and doing now,” the President is implicitly saying, “you’ll vote in my successor.” Wink.
The Supreme Court doesn’t have to worry about this. They have the ability to “vote their conscience,” and more often than not, their opinions are complex and substantive. Even Clarence Thomas, whose opinions sometimes read like a history buff’s rewrite of the Unabomber Manifesto, is an insanely complex, deep thinker. Yes, he tends to pretzel-logic his way into the most conservative possible interpretation of the Constitution, but he never does so lightly. I can’t even suggest that he cherry-picks facts or historical quotes to support his opinions. His mind actually fascinates me, even though I disagree with him (and his interpretation of history) nearly all of the time.
The Framers designed it this way intentionally. State and local judges face elections, and while the elections tend to be a joke—at least in my district, they tend to run unopposed, and I have no fucking clue who any of them are—they have a greater tendency to be corrupted. When people talk of injustice, they talk of the county judge who lets an ignorant kid get railroaded into a long prison sentence; the Supreme Court is the final stop on that railroad, and it should be the place where corruption ends because the Justices are beholden to nobody.
If Cruz wants to worry about judicial activism, imagine the activism that will happen when Justices need to curry the people’s favor to remain on the bench. Cruz’s goal is totally clear: he wants to further the ideological divide by requiring the “conservative” Justices appointed by “conservative” Presidents to vote with the “conservatives,” because they constitute the majority of the Court at this time. Like so many Big Ideas from politicians, the thinking is absurdly short-sighted: what’s going to happen if, by a narrow majority, every “conservative” Justice gets ousted while a Democrat is in office?
This suggests to me that Cruz is either stupid, dishonest, or both. He’s certainly playing politics, as evidenced by deeply offensive statements like,
In the case of marriage, a majority of states passed laws or state constitutional amendments to affirm the definition of marriage as between one man and one woman. At the federal level, the Congress and President Clinton enacted the Defense of Marriage Act. When it comes to marriage, the Court has clearly demonstrated an unwillingness to remain constrained by the Constitution.
In this staggeringly stupid paragraph, Cruz willfully confuses state constitutions with the U.S. Constitution, and the Defense of Marriage Act with a constitutional amendment (it’s a part of the behemothic U.S. Code). You can try to argue “states’ rights” or try to argue “traditional marriage” is the “will of the people,” but don’t suggest the Supreme Court is ignoring the Constitution when it’s doing the opposite: testing the existing laws against the Constitution.
In the two rulings Cruz finds so offensive, one was a very simple issue of civil liberties, and the other was a very complicated issue of convoluted lawmaking run amok.
Obergefell v. Hodges is the simple one: it began with a test of Ohio state law—which refused to acknowledge their legal Maryland marriage, resulting in willful discrimination against the individual liberty of the plaintiff—that ultimately led to a test of the Fourteenth Amendment. Cruz, like many Republicans, seem to think the Justices “redefined” the meaning of the Fourteenth Amendment, which they all see as being entirely about ex-slaves. However, the Fourteenth Amendment is intentionally vague, because the Congress of 1868 was smart enough to realize that such basic freedoms as the right to due process and equal protection under the law would not merely apply to freed slaves. While it’s true that this Congress probably would have viewed homosexuality as a sinful abomination, they had enough of that “common sense” to realize you can’t include a laundry list of exclusions while guaranteeing “equal rights.”
Incidentally, as anyone who has kept up with the history of the country knows, this amendment did not magically transform this country into one of equality and true individual freedom. Women remained unable to vote, Native Americans were being shepherded into reservations to make room for railroads and white people, non-whites remained subject to extreme forms of racism and discrimination that were viewed as proper, normal behavior. Yet, the Fourteenth Amendment was a step in the right direction. The Fourteenth Amendment meant the racist South had to pass a series of “separate but equal” laws rather than outright depriving and denying rights to blacks. I’m not defending the South for its decision to provide beautiful libraries for whites and shitty libraries for blacks; I’m saying that if Southern whites had their druthers, they more than likely would have denied blacks any library at all. The Jim Crow laws were a racist abomination designed to oppress and segregate, as was their lopsided enforcement by white authorities, but not nearly as racist and awful as the laws could have been—and that’s thanks to the Fourteenth Amendment.
Plessy v. Ferguson, in which the Supreme Court ruled these laws constitutional, was a test of the Fourteenth Amendment that failed. Anybody with eyes could see the difference in treatment between whites and blacks, but from a legal standpoint, blacks were considered “equal.” It wasn’t until nearly sixty years later, in Brown v. The Board of Education, that Plessy was overturned with a single, mind-blowing argument: if we are indeed equal, then why are we separate? Plessy was built on the racist but legally justifiable notion than “coloreds” imposed the “separate” structure upon themselves; the Supreme Court (and the NAACP) found the right case in Brown, which demonstrated that the segregated Topeka schools indeed had truly equal facilities in physical structure, educational quality, funding, resources, and treatment. Looking at them side by side, there was no other decision to make: “[D]oes segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”
If this decision, based on the Fourteenth Amendment’s equal protection clause, held for black students in the ’50s, why would it not also hold for gay couples sixty years later? They are the “minority group” deprived of equal rights under the law on the sole basis of their sexual orientation. States’ rights do not trump the Constitution; that’s kind of the point of having it. The fact that states may have chosen to discriminate, and that its voters may have supported this choice, is irrelevant. The fact that the Fourteenth Amendment was ratified in 1868 is irrelevant. The text of the amendment is not vague, and it frankly shocks and disgusts me that it even came down to a 5-4 decision. Here is the text of Section 1 of the amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Cruz, who claims to be a “Constitutional conservative,” wants to resolve a clear-cut decision he disagrees with by allowing states to ignore the Constitution altogether. He claims “[l]iberty hangs in the balance,” just as he told Liberty University students that the Constitution protects “the God-given liberty of every American,” ignoring, of course, that the idea of individual liberty was created by Man, not God. Examples of liberty are rare in the Christian Bible. The one that comes the closest to the idea of individual freedom comes from 1 Corinthians (10:23-32):
“All things are lawful,” but not all things are beneficial. “All things are lawful,” but not all things build up. Do not seek your own advantage, but that of the other. Eat whatever is sold in the meat market without raising any question on the ground of conscience, for “the earth and its fullness are the Lord’s.” If an unbeliever invites you to a meal and you are disposed to go, eat whatever is set before you without raising any question on the ground of conscience. But if someone says to you, “This has been offered in sacrifice,” then do not eat it, out of consideration for the one who informed you, and for the sake of conscience—I mean the other’s conscience, not your own. For why should my liberty be subject to the judgment of someone else’s conscience? If I partake with thankfulness, why should I be denounced because of that for which I give thanks?
So, whether you eat or drink, or whatever you do, do everything for the glory of God. Give no offense to Jews or to Greeks or to the church of God, just as I try to please everyone in everything I do, not seeking my own advantage, but that of many, so that they may be saved.
In summary, the concept of liberty offered by Paul revolves around a “don’t ask, don’t tell” policy regarding eating habits, and he follows up this idea of liberty with a reminder to “do everything for the glory of God,” and to be nice and inoffensive in the hopes of gathering converts. This certainly sounds right in line with Republican ideology, but it is not an example of individual liberty.
Here’s how my trust Oxford English Dictionary defines it:
n. (pl. liberties) [mass noun]
- the state of being free within society from oppressive restrictions imposed by authority on one’s behavior or political views: compulsory retirement would interfere with individual liberty.
- the state of not being imprisoned or enslaved: people who attacked phone boxes would lose their liberty.
- the power or scope to act as one pleases: individuals should enjoy the liberty to pursue their own preferences.
- [PHILOSOPHY] a person’s freedom from control by fate or necessity.
- [count noun] (usually liberties) a right of privilege, especially a statutory one: the Bill of Rights was intended to secure basic civil liberties.
[I excised two additional definitions and three phrases that are irrelevant to the discussion.]
< ORIGIN > late Middle English: from Old French liberte, from Latin libertas, from liber ‘free’.
Cruz hides behind the idea of states’ rights in promoting the opposite of liberty. He has said, more than once, that marriage is defined as one man and one woman (which isn’t even true in the Bible supposedly guiding “our” values and liberties—I reluctantly credit my arch-nemesis, Reza Aslan, with the astute observation that the Bible dictates marriage is one man and “as many women as you can afford”; of course, as a Muslim, he believes in the restraint of not exceeding four wives).
In the past, Cruz has claimed the issue of gay marriage is one of the “profound threats to religious liberty in America.” Let’s consider exactly what this means. What does it mean to deny gay couples the right to marry, and the equal protection under the law guaranteed by the Fourteenth Amendment? It means “oppressive restrictions imposed by authority on one’s behavior.” Until the very recent past, it also meant “being imprisoned or enslaved.” (And one or both possibilities remain in some states and countries, depending on their laws regarding homosexual behavior.) Okay, that seems pretty bad for gay people. But what about religious people? What does it mean to them if we allow gay couples to marry?
[Crickets chirping.] There is absolutely nothing about gay marriage that harms religious people in any way, shape, or form. This Supreme Court decision does not legally require ministers to perform religious marriage ceremonies; it does not prevent religious people from speaking out against homosexuality in general and gay marriage in particular. It does not allow gay couples to enter a church and have a marathon fuck session in front of a horrified yet aroused congregation; it does not prevent religious groups from banning gay people from their church altogether. It allows nothing that will harm any American in any way, shape, or form. It simply allows gay couples the equal protection guaranteed to them by the U.S. Constitution, and it prevents states from undermining that guaranteed protection by passing discriminatory laws based on ancient religious custom.
In a May radio interview with Eric Metaxas, Cruz asserted that this decision would lead to the removal of Christian churches’ and universities’ tax-exempt status if they continued to “maintain a Biblical definition of marriage.” He bases this on an inaccurate paraphrasing of an exchange between Justice Sam Alito and Solicitor General Donald Verrilli. As an atheist, I say, “So what?” As a quasi-libertarian Ayn Rand fan, I say, “The only reason churches should be exempt from income tax is because everyone should be exempt from income tax.” This opinion has nothing to do with protecting their religious liberty.
The Constitution protects freedom of expression and freedom of religion. Nobody’s passing a law, or talking about passing a law, abridging those freedoms. The case Alito mentioned, Bob Jones University v. United States, specifically held that their decision only applied to religious schools, not “churches or other purely religious institutions.” The case was about Bob Jones University’s ban of interracial dating, which lost the university its tax-exempt status on the grounds of racial discrimination. The university attempted to defend itself on the grounds of the First Amendment, which is fine and dandy—religious discrimination is certainly a part of free expression—but the Court held that if the university wanted to have that policy, they could not be considered a religious institution. Indeed, the Bible is filled with interracial marriage (and rape!), including Moses marrying a Cushite (Ethiopian), so the idea of basing the case on the university’s religious convictions was patently absurd. Here’s what Bob Jones University had to do to regain its tax-exempt status: reverse their interracial dating policy. They did not do so until 2000, 18 years after the Supreme Court Decision and 30 years after the IRS changed its racist policies and revoked the university’s tax-exempt status.
This was not a case of undermining religious liberty; this was a case of a group of racist assholes paying the price for choosing to continue to remain racist assholes despite clear-cut consequences. In terms of politics, I’m not overly enthusiastic about those consequences being a legal obligation to pay taxes (including back taxes), but in general I do love negative consequences for negative actions. As I’ve said before, if you make the choice to discriminate, that is your right as an American—but it’s the right of the rest of us, as Americans, to choose not to have a thing to do with you, which will hurt you socially, financially, politically. Cruz, by implication, would rather support Bob Jones University’s “religious liberty” to discriminate against interracial couples than agree gay marriage is entirely harmless to all Americans. Strange that the product of an interracial couple would ignore that, but I guess religious liberty trumps all things.
Moving on to the less divisive and less religious Court decision, King v. Burwell is a needlessly complicated case based on a needlessly complicated law citing a needlessly complicated precedent. Those who have read this blog for awhile know that I think the “Affordable Care” and “Patient Protection” Act is a horrific monstrosity, and I agree with Cruz that it should be repealed (albeit for different reasons). However, as with the National Federation of Independent Business v. Sebelius decision three years ago, I grudgingly accept the reasoning of the majority in King v. Burwell…to the degree that I understand it, which admittedly may be “not very well.”
Basically, it seems that the ACA granted the IRS authority to create regulations based on certain portions of the Act. One of these portions was ambiguous, and the Court challenge was that Congress didn’t explicitly grant the IRS the authority to reinterpret the ambiguous section, nullifying the IRS’s regulation. The consequence of the nullification, and the ambiguity preventing the IRS from rewriting the regulation in any way that would give it the same meaning, would cause anyone living in a state without an insurance exchange to lose federal tax subsidies, which would affect somewhere between five and 10 million people. This would be exacerbated by the fact that the ACA is explicit in giving states a choice of not creating their own exchange, relying instead on a federal exchange. Without the ability to remove that choice, or the ability to allow the IRS to grant subsidies to those insured through federal exchanges, would render a major feature of the ACA—guaranteed access to health insurance for low-income citizens—worthless.
The ruling makes sense, to my unending irritation. I won’t pretend that it doesn’t just because Obamacare doesn’t fit my politics. The ambiguous passage in question is one sentence in a larger statute that, in context, may very well use “the State” to refer to the federal government. Cruz quotes a passage from Justice Scalia’s dissent: “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.'”
Repeatedly throughout both 42 U.S.C. § 18031 and the full extent of the ACA, “the State” refers to individual states and the federal government interchangeably, except in passages where it makes specific distinctions between “a State,” “the States,” and sometimes “the State” versus the federal government. I can say, with a fair amount of certainty, that lawmakers did this intentionally to create confusion in challenges like these. However, the IRS is unambiguously granted the authority to create specific regulations based on the ACA. The ambiguity of the passage in question is whether or not the IRS has the right to choose to interpret “the State” as meaning the federal government. The Court upheld the IRS’s right to make that interpretation, and upheld the interpretation itself.
Inasmuch as I understand this case, this is the only reasonable ruling, even if the opinion is muddied up with a lot of nonsense about “death spirals” and the ruling being in the economic interest of the country. While many right-wingers see this as a form of “judicial activism,” it’s merely a reinforcement of the spirit of the law, versus the letter of it. Roberts merely echoed the stated intentions of those legislators who developed the law, and their decision to uphold those intentions, rather than dismantling an obscenely complicated law based on a technicality.
You don’t know how much this annoys me. With National Federation of Independent Business v. Sebelius, the argument hinged on the constitutionality of forcing Americans to buy insurance (a violation of the Commerce Clause), but the law plainly states that Americans aren’t forced to buy insurance; they’re “merely” punished for not buying it. Is it unconstitutional to coerce Americans into buying a product by imposing taxes on them for not buying it? Maybe, but that’s not the case that was argued. King v. Burwell has an even worse problem, because its argument hinges entirely on ambiguities.
I remain hopeful that a proper case will come along in the next few years that will overturn the ACA. I have not yet concocted a solution to the problem of healthcare in this country, but I know two things: (1) the government acting as an enabler to a corrupt industry won’t help anybody, and (2) neither, in the long term, will socialized medicine. I would favor a system that remains private but treats patients as consumers, allowing them informed choices and competition. I know this would be difficult to implement under some circumstances—in emergency situations, for instance, it would be reckless and inefficient to dispatch ambulances from several different, competing hospitals—but I’m thinking of specific examples I’ve been party to: being told an X-ray is needed, but not being told the machine was leased equipment from a hospital, so the hospital would bill for its use, and it wouldn’t be covered under the copay (over $200 instead of $15); paying $2000 for an ambulance ride without being told that cost is negotiable. In non-emergency situations, consumer choice is important, and transparency is key to allowing that choice.
Based on my plethora of anecdotal evidence, it seems most people in this country experience healthcare as a form of slavery: you’re beholden to the hospital, who tell you what to do but don’t tell you what it may cost; you’re beholden to the billing specialists, who nickel-and-dime you while assigning vague codes for charges; you’re beholden to the insurance companies, who sometimes deny claims for puzzling reasons; and you’re beholden to the intentional shroud of secrecy created by healthcare providers, suppliers, and insurers, because nobody tells you that you can negotiate denied claims with the hospital, or that you can ask for details on what certain charges mean and refuse to pay them if they are unreasonable, or that hospital’s base non-negotiated rates have no relationship to market forces (they’re artificially padded for three reasons: so that honest payers will cover the bills of deadbeats, so that insurers look like their collective bargaining powers have dramatically brought down costs, and because there is absolutely no competition).
Obamacare has changed very little of these problems, and in fact has enhanced some of them by coercing all Americans to buy insurance. Having access to insurance isn’t the same as having healthcare. In times of illness, having a high-deductible plan is just as unhelpful as having no insurance when you’re living in poverty. Healthcare exchange websites that compare rates creates an illusion of private competition, but saving a few dollars a month is meaningless when a person gets sick and has to find a way to pay $2250 without getting sent to a collection agency. This is why I yearn for its dismantling, but the right case hasn’t come along to really challenge it.
And that’s why the Court’s decision was neither “judicial activism” nor a threat to liberty (religious or otherwise). Their job is to determine the constitutionality of a law based on the case they hear, and that’s what they did. It’s not their fault the cases they’ve heard do a really shitty job of knocking down Obamacare.
Cruz should know this. If he’s looking for constitutional amendments to champion, I have a suggestion: a requirement that any candidate who wants to run for President pass a sixth-grade-level civics test to demonstrate an understanding of how the government is supposed to work.