Supreme Court, circa 2010

Obamacare, Gay Marriage, and the Supreme Court: Who Gets to Decide?

This week, the Supreme Court of the United States (SCOTUS) decided nine cases, ranging from invention royalties to whether hotels must keep guest information and provide it to the police on demand. It’s fair to say all the cases were important, but two were deeply divisive: the ACA/Obamacare subsidies and gay marriage. The Court ruled by a margin of 6-3 that subsidies are okay if insurance is purchased on a federal exchange (King v. Burwell), and by a 5-4 vote that all states must perform and recognize gay marriage (Obergefell v. Hodges).


At oral argument for Obergefell, Justice Kennedy mused aloud whether nine unelected justices had the right to change a definition which has been in existence for millennia, by saying, “Oh, we know better.” (Ultimately, he decided they did.) But that’s the real question, isn’t it? Who gets to decide?

Whether you agree with this week’s Court’s decisions or no, remember many landmark cases have been decided by a 5-4 majority. In other words, the opinions of five people outweigh millions of citizens — without the consent of the governed.

Any five justices can outweigh the wishes and opinions of the entire country

Any five justices can outweigh the wishes and opinions of the entire country

Here’s a partial list of controversial outcomes by SCOTUS during the past 15 years:

  • Mandating Americans must purchase a product (i.e., health insurance)
  • Preventing states from implementing their own immigration laws
  • Gutting the Voting Rights Act’s preclearance requirement
  • Ruling race in school admission is legal
  • Ruling state amendments banning affirmative action are permissible
  • Allowing doctors to prescribe drugs to aid in assisted suicide
  • Ruling Westboro Baptist Church is not liable for emotional distress they cause by picketing funerals
  • Approving drug testing by school districts on students in extracurricular activities is okay
  • Selecting George W. Bush to be the president of the country
  • Giving foreign terrorism suspects a constitutional right to challenge their detention in U.S. courts.
  • Allowing unlimited dark money to buy elections
  • Permitting partial birth abortion bans are permissible
  • Overturning marriage amendments citizens voted into law in their states
  • Ruling mentally handicapped people cannot receive the death penalty, but giving each state the power to choose their own definition of mentally handicapped

Ted Cruz and Mike Huckabee, Republican presidential candidates, suggest electing SCOTUS members and imposing term limits as a solution to this problem. (I would add that term limits for Congress would solve many problems, as well!) Let’s be clear: Cruz and Huckabee are undoubtedly suggesting term limits and elections because they are unhappy with the gay marriage and Obamacare rulings. Their motives are questionable, but the suggestions are good.

Justice agreement, credit SCOTUSblog

Justice agreement, credit SCOTUSblog

In most cases, the justices vote conservatively if they were appointed by a Republican president, and liberally if they were appointed by a Democratic president. There is a high level of agreement between the liberal justices and a high level of agreement between the conservative ones. The justices share the political views of the president who appointed them. Those appointed by Democratic presidents are known as the liberal bloc, their counterparts appointed by Republican presidents are the conservative bloc. No surprises in any of this, but it does prove the rationale for having life-time appointments – to keep politics out of justice – is absurd and illegitimate.

Of course, we need a Supreme Court. But we deserve some input over who is on the bench, through democratic elections. And curtailing their power through term limits is the greatest service we can do for the country.


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