Standing among the crowds of happy Americans celebrating the victory for marriage equality on the courthouse steps, the nation was continuing along its arc of progress, and history was being made. Chief Justice Roberts, however, chose to make himself a footnote to that history rather than be a part of it.
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Nearly 150 years ago, our nation redeemed the Constitution from the sin of slavery, guaranteeing liberty and equality under the law to all persons, and giving to Congress sweeping new constitutional authority to help realize our Constitution’s promise of equal citizenship stature for all Americans. This term at the Supreme Court, the justices reaffirmed the fundamental constitutional truths at the heart of the Fourteenth Amendment, and of the civil rights laws passed to realize its goals, that demand true equality.
Chief Justice Roberts has used his power to entrench the ACA—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives' strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.
Justice Kennedy concluded his opinion with majestic language, observing that same-sex couples “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Chief Justice Roberts’s dissent notwithstanding, Obergefell v. Hodges will be a great legacy of the Roberts Court, just not of John Roberts himself. And the Constitution will have had everything to do with it.
The decision the Court reached today was the only one consistent with well-established legal principles and the text and history of the ACA. But that didn't stop three of the Justices from coming out the other way. Roberts has said he doesn't want the Court to be seen as just an "extension of the political process." By putting law over politics, the Chief Justice and Justice Kennedy helped demonstrate that it won't be seen as such today. And that's a very good thing.
Opinions like Scalia’s are what lead members of the public to conclude that the justices are just politicians in robes and that the Court is just an “extension of the political process”—exactly what the Chief Justice has repeatedly said he does not want. Today, by fairly interpreting the law and applying well-established principles of statutory construction, the Chief Justice and Justice Kennedy helped show that at least some justices can sometimes put law over politics. Let’s hope they continue to do that in the future.
While it is possible that King v. Burwell will realize its fans’ dream of “driving a stake through the heart of Obamacare,” the better bet is that conservative ideology will trump that political goal, and on terms with which progressives can live.
The impact of these cases on individual lives’ may be less direct or obvious than in the case of health care or marriage, but it’s no less real. So as you wait to hear what the court will decide in the marriage and health care cases at the end of the month, it’s worth paying attention to the other cases it’s deciding in the meantime. They might be a lot more significant than you think.
Whether same-sex couples in Alabama and 13 other states around the country will continue to be denied the freedom to marry is now up to the U.S. Supreme Court. As Loving shows, this country will always have constitutional outliers when it comes to respecting the fundamental rights of minorities, and that’s where the courts come in. In Loving, as it has in many other cases, the Supreme Court fulfilled its constitutional role as the ultimate guardian of those rights. It must now do the same in Obergefell.