Pick a New Fight

July 5, 2015

That was quite a reaction from the Republican presidential candidates to recent Supreme Court decisions that didn’t go their way.

They shouldn’t have been surprised by either.

In the decision that affirmed another key element of the Affordable Care Act (ACA), even Chief Justice John Roberts became a sixth vote with the majority.

And the same-sex marriage decision was not unexpected, given that swing-vote Justice Anthony Kennedy has been the difference on several issues important to the LGBT community.

Roberts’ opinions were especially interesting. He based them neither on what was actually written by Congress nor the authors of the Fourteenth Amendment who instructed that states "... not deny any person within its jurisdiction the equal protection of the laws..." To the Chief Justice, that’s ambiguous, though it seems crystal clear to most of the rest of us.

Things got more interesting still when the Republicans Who Would be President started talking.

Ted Cruz said court clerks in Texas should simply ignore the Court and refuse to issue marriage licenses to same-sex couples if it offended their religious beliefs. He then upped the ante by suggesting justices should have to be approved by the voters every eight years. Wouldn’t that be great? Campaigns for Supreme Court justices?

Mike Huckabee called it judicial tyranny and suggested mass civil disobedience as a most excellent response.

Louisiana Governor Bobby Jindal won the who-can-sound-most-preposterous contest by claiming ministers and churches will be forced to perform same-sex marriage ceremonies against their will which is, of course, nonsense. Undeterred by his own foolishness, he then said we should just do away with the Supreme Court.

Many said constitutional amendments should be the order of the day.

Even a local former City Commissioner got in on the act by claiming it was the "end of the separation of powers."

All of them suddenly became constitutional scholars. There is nothing in the constitution permitting same-sex marriage, they say. And actually, there is nothing permitting any marriage, though there is something that says everybody has to be treated equally under the law (by the way, there is also nothing that even vaguely suggests a corporation has the same freedom of speech rights as an individual but those now complaining liked that decision). Even Democrats didn’t whine this much when the Court refused a recount in Florida, handing the presidency to George W. Bush.

Politicians with a fundamental misunderstanding of the system they want to lead are genuinely spooky. Part of our agreement with our government as citizens is that we accept the decisions of the highest court in the land whether we like them or not. We don’t get to pick and choose which decisions to follow.

To his credit, Jeb Bush burst into the Land of Common Sense when he suggested we respect the opinion of the Court and implied it’s time to move along.

That would be an excellent idea for a few very good reasons.

Public opinion is no longer on their side on the same-sex marriage issue. There is no way to get two-thirds of the U.S. Senate, much less 38 states, to approve tinkering with the constitution. The amendment advocates are appealing to an ever-shrinking group of voters and will eventually just be talking to each other.

Public opinion on the ACA is still mixed but it will become plenty popular if we try to take it away. There are now more than 20 million people who rely on health insurance or Medicaid directly or indirectly as a result of the ACA. It has been less costly than originally believed and annual premium increases smaller than anticipated. It will be tricky business explaining to those tens of millions of people why they should lose their coverage, and why the rest of us should pay more for ours.

But the Supremes are now too political, you say? The Court is now and always has been political. Justices are nominated by a politician, questioned by a committee of politicians and confirmed by politicians. The court exists in and of the real world. They aren’t a sequestered jury nor need they be.

Making controversial, even unpopular decisions is nothing new for the Court. What has changed is the ever-increasing shrillness of opposition to their opinions. The notion that the Court must agree with us or, by golly, we’ll ignore them until we get our way is antithetical to our entire system.

Those appalled by the same-sex marriage decision can try to amend the constitution. The ACA can be changed legislatively if Congress has the will. Until then, the Supreme Court decisions are the laws of the land.

The reality is simple; this battle in the social wars is over. Opponents of same-sex marriage and the ACA lost. It’s time they pick a new fight.