The whole idea behind lifetime appointments to the highest court in the land is to provide justices with insulation from political pressure.
They are perfectly positioned to resist the executive, the legislature, the news media and elite opinion to the point where they are free to issue rulings upholding the rule of law.
At least that’s the theory, and that’s what Alexander Hamilton, and others, argued in the Federalist Papers (See Federalist No. 78).
But that’s not how it played out in the King v. Burwell ruling, which said the federal government was authorized to provide subsidies for individuals whose states did not establish health care exchanges under the terms of the Patient Protection and Affordable Care Act (ACA). It was last December that we filed an amicus curiae brief in support of the plaintiffs in the King lawsuit against the IRS and the Departments of Health and Human Services (HHS) and Treasury over a decision by the agencies to ignore a key provision of the ACA. The lawsuit sought to prevent the IRS from providing refundable tax credits to individuals who purchase health care coverage through a federal rather than a state exchange.
But because the chief justice twisted himself into a pretzel, yet again, to save the law, the well-reasoned arguments in our brief did not carry the day.
Unfortunately, the rule of law also lost out in Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. Here, the Supreme Court upheld a federal Fair Housing Act (FHA) interpretation that imposes liability on a state housing decision that disparately impacts certain minorities, despite the absence of evidence of any discriminatory intent. Just to review, under the theory of “disparate impact,” a defendant can be held liable for discrimination for a race-neutral policy that statistically disadvantages a specific minority group even if that negative “impact” was neither foreseen nor intended. In such cases, defendants can be forced to pay for harm caused not by their own actions, but by economic and statistical realities, even if beyond their control. We joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the Supreme Court in support of the State of Texas’ appeal of a lower court ruling upholding a FHA interpretation that imposes liability on a state housing decision that disparately impacts certain minorities, despite the absence of evidence of any discriminatory intent.
So again, this comes down to a question of motivations.
For the second time, the chief justice has seen fit to rewrite key portions of the federal health care law commonly known as Obamacare. Recall that back in 2012 Roberts wrote in his majority decision that the law could be upheld as a tax. So what was legislated as an “individual mandate” was converted and reshaped by the chief justice into a tax. If Obamacare had been described that way right from the get-go, it would never have passed Congress.
Here is my statement on the King v. Burwell ruling:
[Thursday’s] Burwell decision is an affront to the rule of law and constitutional self-government. No federal judge has the power to rewrite the law, which is what the majority did today in Burwell. Chief Justice Roberts, Justice Kennedy, Justice Breyer, Justice Sotomayor, and Justice Kagan took part in an unconstitutional power grab every bit as unlawful as President Obama’s rewrite of Obamacare. None of these justices have the constitutional power to rewrite major components of Obamacare in order to “save it.” Ironically, the majority cites the corruption of the passage of Obamacare as an excuse for the judiciary’s own corrupt, nonsensical fix of the same law. Congress still can vindicate its power and uphold the rule of law. This terrible decision has no binding effect on choices by Congress to defund President Obama’s despotic rewrite of the law and prevent the IRS from unlawfully providing insurance subsidies. And, of course, the impeachment power still remains for executive branch officials who won’t obey the law. The Court makes a policy pronouncement, all evidence to the contrary, that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” The justices in the majority ought to have the honesty to run for Congress if they want to write rather interpret law. Our republican form of government is weakened when the president and six Supreme Court justices disregard federal statutes in favor of their own policy choices.
And yesterday also saw more contortions by justices trying to justify writing into law the notion that we peons practice “unconscious” discrimination and racism, an intellectual absurdity which does nothing but empower the race hustlers both in and out of government who see racism when none exists:
[Thursday’s] Supreme Court “disparate impact” decision in the case of Texas Department of Housing v. Inclusive Communities Project is confused and, as the Court did in its Burwell decision, endorses the Executive Branch’s radical racial rewrite of our federal housing law. The Obama administration unlawfully changed federal housing anti-discrimination law to prohibit practices that result in a disparate impact on minorities. In fact, the law prohibits actions only taken because of race, not actions that happen to disproportionately impact certain races. Unfortunately, this judicial activist decision further enshrines the intellectually impoverished concept of race into the law, it furthers a culture of racial and ethnic politics in American public life, and perpetuates racial and ethnic resentment and intolerance in American society. In fact, the only way to treat the troubled concept of “race” in the law should be to absolutely prohibit its use as a basis for making decisions affecting individuals or groups. Conveniently, such a prohibition is precisely what the Constitution already requires. And, as Judicial Watch has alleged and as Justice Thomas implies in his dissent, the Obama administration corruptly influenced the Supreme Court’s consideration of this issue and has tainted today’s ruling.
And finally we have the out-of-control ruling released in the Obergefell v. Hodges case that imposes same-sex marriage on the entire country. As Justice Antonin Scalia has warned in his eloquent dissent, democracy itself is at stake. Ironically, Chief Justice Roberts got it right today, when he says that the opinion by the liberals on the Court has nothing to do with the Constitution.
Here is my statement:
Today’s decision shows that the Supreme Court can be a danger to our republican form of government. The opinion authored by Justice Kennedy is not constitutional, is unmoored from law and precedent – and is invalid. The exercise of raw judicial power by five justices should be resisted under law and overturned. Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan abused their public offices and acted contrary to their oaths of office by assuming the power to legislate their progressive views on homosexual marriage from the bench. The personal advocacy for homosexual causes by justices in the majority has also cast an ethical cloud over this decision. This decision will lead to frontal assaults, led by the Obama administration, on a right which actually is in the Constitution, the right to freely exercise one’s religion. I fear this judicial coup will lead to social unrest, the jailing of religious leaders, and other outrages against those Americans who shared the views of Barack Obama, Bill Clinton, and all of Western civilization on traditional marriage. This is a terrible, terrible day for our nation.
We know what a punch to the gut these rulings are for our readers and supporters who value the rule of law and the idea of constitutional limited government. For the moment, those principles are lost. I encourage you to read all three opinions at issue (especially the dissents!). Again, you can view the opinion on marriage here, the opinion on Obamacare here, and the opinion on so-called “disparate impact” here.
In the wrong hands, the judiciary is a threat to the republic. You can be sure that Judicial Watch will continue to advocate for a constitutional and accountable judiciary.
Until next week…Tom Fitton
About Judicial Watch:
Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation’s public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach. Visit: www.judicialwatch.org
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