I like Judge Roberts. I don’t always agree with him, but I get where he is coming from. I argue with my conservative friends who bash him for not “stopping bad legislation.”
To this I say the following- It is not his job to stop our nation from being or doing stupid things. All he can do is give us a chance, through the democratic process, to stop ourselves. Which I argued he did when he let Obamacare stand. He believes that no court should be an activist court. Sadly, there are occasionally five judges who do, and did so in the gay marriage dispute. Which I will point out, Roberts vehemently disagreed with.
From his dissent;
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sexmarriage. Yes, the majority concedes, on one side arethousands of years of human history in every society known to have populated the planet. But on the otherside, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers,books, and other popular and scholarly writings,” and“more than 100”amicus briefs in these cases alone.Ante at 9, 10, 23.What would be the point of allowing the democratic process to go on? It is high time for the Courtto decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remainsurgent in our own era.”Ante, at 19.The answer is surely there in one of those amicus briefs or studies. Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy,debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue ofthis sensitivity on decent and rational grounds.”Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16–17).
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And theyknow it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, andsometimes changing their minds. They see political leaders similarly reexamining their positions, and eitherreversing course or explaining adherence to old convictions confirmed anew. They see governments and businessesmodifying policies and practice s with respect to same-sex couples, and participating active ly in the civic discourse.They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before. When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it
from the realm of democratic decision. There will be consequences to shutting down the political process on anissue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likelyto accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As athoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enoughfor advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handedjudicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, SomeThoughts on Autonomy and Equality in Relation to Roe v. Wade , 63 N. C. L. Rev. 375, 385–386 (1985) (footnoteomitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes frompersuading their fellow citizens of the justice of their cause. And they lose this just when the winds of changewere freshening at their backs.
After reading this dissent, those who still want to pillory Roberts Alinsky style should take pause. What he is saying is that SCOTUS should not be in the middle of changing the intent of the people or Congress or making laws out of whole cloth. He is trying to not allow an activist court while herding five activists judges like bi-polar cats.
Roberts gives religion a huge push with his next comments, literally telegraphing to the religious groups that their RIGHT, as described in the first amendment is real, while a created right out of two clauses is not. When the two are in conflict, the real right will win. One hopes. If it doesn’t, get ready for some serious civil disobedience.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sexmarriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religiousbelievers may continue to “advocate” and “teach” their views of marriage. Ante , at 27.The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only toopposite-sex married couples, or a religious adoption agency declines to place children with same-sex marriedcouples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. Thereis little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can takeno comfort in the treatment they receive from the majority today. Perhaps the most discouraging aspect of today’s decisions the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante, at 19.That disclaimer is hard tosquare with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples.Ante, at 19.
The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and incourt. See post, at 6–7 (ALITO, J., dissenting).Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right tosame-sex marriage; it is something else to portray everyone who does not share the majority’s “better informedunderstanding” as bigoted. Ante, at 19.In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.* * *If you are among the many Americans—of whateversexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do notcelebrate the Constitution. It had nothing to do with it.I respectfully dissent.
So what is the difference now? For years the gays, who successfully piggy-backed their cause onto the black civil rights movement have been the underdog. With the ruling by the majority, the religious groups are now the minority and now the underdog. Get ready for some serious court cases working their way up the chain. Obama has only twenty months or so to go. Most of this damage won’t be heard under his administration or his ideology- unless we elect Hillary.
On a side note, have you notice gays who target Christians never targeted a black baker or a black church? Why? Because blacks were loyal allies to the democrats on this one. And they will learn, once again, their role as “useful idiots” will cost them dearly when the first gay couple shows up at their church doors demanding to be married. It is inevitable because that is how militant gays roll!
Now to Obamacare. And I’ve argued this before, so I’ll be brief. Roberts believes that SCOTUS has no right to legislate from the bench. He also believes the Court has no right to change legislation IF that legislation has been constitutionally passed. Their only duty is to make sure any acts of the other two branches do not HARM people unconstitutionally.
Now understand, he does this with four activist liberal, and some questionably functional members… and Kennedy.
In Obamacare he twisted function of the law to match the intent of its designers. He knew the law is crap, he’s not blind, but is it constitutionally passed crap? The answer, sadly, is yes. I think privately he knows it will fall apart or get modified over time, but is not the duty of SCOTUS to stop us from allowing our representatives to pass bad laws. It is their duty to stop those bad laws from violating our constitutional rights. See Citizens United for an example.
How many people voted in 2008 presidential race for the democrat? By group there is this. By totals there is this. There is a great simple interactive graph at the NY times that shows how they voted in the primaries, showing who voted for Clinton or Obama, which was a harbinger of what was going to happen to McCain- arguably Hillary’s male doppelganger.
Then they threw up Obamacare care, pushed the mess through with some shenanigans, and Obama signed it. Maybe hardball politics but constitutional. If you’ll note, no Republicans sued because the dems cheated.
Sixty-nine million people voted for Obama and the dems. Blame them.
Five hundred thirty seven elected federal office holders were in power when it passed. Blame them.
A number of states accepted their fate eagerly and created the exchanges. Blame them.
Other lower judges split over the same constitutional issues. Blame them.
Bureaucrats succumbed without a fight. Blame them.
The media lied about Obamacare from the start. Please blame them.
And four other justices jumped at the chance to push it through for activists reasons. Blame them.
Roberts believes it is not his job or SCOTUS job to stop us for voting for corrupt fools and then letting those same fools make bad law. He gave us that chance in 2012. He will, and has stepped in, when those laws offend the rights of citizens. See Heller and Hobby Lobby.
We blew it. Sixty-five million gave Obama four more years, during which THIS happened. So..hello? For those of you who stayed home in protest- blame yourself. Then LEARN from your mistake.
He has encouraged religious groups to come to the court to seek protection when, and it will be when, the governments strike them.
And I believe he will defend those rights. Getting four others to join him is going to be iffy.