\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Another Supreme Court term has come and gone. Once again, major issues of political justice and social morality have become issues of constitutional law. It seems that in America all such issues eventually make their way to the Court for definition, refinement and, ultimately, decision. Whether this is good or bad is for the reader to decide. As always, Supreme Court decisions are an occasion for celebration. After all, there is almost always a winner. However, they are also an occasion for distress and concern: there is always a loser. This term has also been a special occasion for acrimony and bitterness among the justices about their decisions. In what will surely go down as one of his more (in)famous remarks, Justice Scalia sourly noted:
I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.1
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Nevertheless, the world and the Court go on.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As usual, some will disagree with my assessment of the 13 most important cases. Originally, this series of articles, typically published every fall in this magazine, was supposed to be a “Top 10.” Alas, it is not always easy to stop at “10,” though it has never been hard to get to at least “10.” In one sense, all Supreme Court cases are the “most important”; why else would they be in the Supreme Court? However, decisions must be made. I have made decisions about cases based on input from colleagues, the intensity with which the press and scholarly community have anticipated and received certain cases, and my own assessment of the impact of a case on the legal, political and social institutions of this great Republic.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Lastly, the title, “Lucky 13,” is not only based on my own subjective, but reasonably educated, judgment about importance, but also on the fact that many of the most important cases were decided by razor sharp votes of 5-4. Thus, it all really could have been very different.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(1) Same-sex marriage:
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0No surprise here. In past years we might have had a debate about which of two or three cases was the “most important.” Not this year! Without question, the brass ring (pun intended) goes to Obergefell v. Hodges.2 No case this year better exemplifies the power of the justices’ rhetoric or the depth of their disagreement about the meaning of the document they are sworn to uphold and preserve.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Kennedy’s opinion for the majority was entirely expected. It positively rings with the high rhetoric of a justice who knows he is writing a landmark opinion for the ages, and the most important opinion of his 27-year stint on the Court.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Constitution promises liberty to all within its reach3 … From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage4 … Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other5 … No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.6
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Of course, the dissenters were also up to the task. Chief Justice Roberts wrote, “this Court is not a legislature.” 7 The Chief Justice said, “for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”8 Chief Justice Roberts went on to state “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”9 Harsh words from the Chief! The other dissenters were no less kind.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0There is no doubt that the issues surrounding same-sex marriage will occupy lower courts for years in the future. We will all watch as they play out.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(2) Obamacare again . . .
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Like the Energizer Bunny, this one keeps going and going. In King v. Burwell, the Court once again addressed a challenge to the Affordable Care Act.10 The relevant language of the ACA that was at issue was “an exchange established by the state.” The Act provides for state exchanges to allow insurance companies to compete in the context of such an exchange. Some states did not establish exchanges. Where states did not create such exchanges, the federal government could step in to do so. That is what occurred here. The IRS issued a regulation permitting federal government exchanges to operate in a similar manner to state exchanges. That regulation and the power of the IRS to issue it was at issue in King. While the Court found the statutory language ambiguous, it held that the language need not be read literally to mean that no subsidies are available in states that have not set up exchanges.
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...