Jeremy Pierce: June 2012 Archives

NPR had a story last night talking about how the narrative of a partisan Supreme Court is undermined by this week's decisions. On one level, it doesn't go remotely far enough. A much larger portion of Supreme Court decisions than is usually recognized are unanimous, and quite a number far along not-remotely-partisan lines, with lineups that would strike anyone who believes the narrative as unusual, but it's not that unusual for it to happen. There are certainly general trends, with the justices appointed by Democrats tending to vote together more often and the justices appointed by Republicans tending to vote together more often, but the lineups on issues that aren't political hot-button issues are often odd from that perspective. Some of the justices on both sides of the usual division are more textualist and inclined to read laws narrowly (Scalia, Thomas, Ginsburg, Sotomayor, formerly Souter), and some on both sides are more pragmatist and inclined to read laws more expansively (Roberts, Kennedy, Breyer, Alito, formerly Stevens, O'Connor). I remember a particular decision from a few years ago that was precisely on those lines. Then there are the free-speech decisions, where the justices don't line up along political lines at all. Earlier this month, one decision had Scalia, Thomas, and Kennedy aligned with Sotomayor and Kagan. The dissent was Roberts, Ginsburg, Breyer, and Alito.

The health care decision did have an interesting lineup, but what's most interesting about it is that there were actually several lineups on separate parts of the decision. Here are several issues and the lineup on each:

1. Is the individual mandate a tax? Yes: Roberts, Ginsburg, Breyer, Sotomayor, Kagan; No: Scalia, Kennedy, Thomas, Alito

2. Is the individual mandate, if conceived of as a federal law requiring people to buy health insurance, constitutional? No: Roberts, Scalia, Kennedy, Thomas, Alito; No: Ginsburg, Breyer, Sotomayor, Kagan [this one does fall according to one common partisan voting pattern]

3. Is the Medicaid expansion constitutional? Yes: same lineup as 1 above.

4. Is it constitutional for the federal government to penalize states for resisting the Medicaid expansion by taking away their previous Medicaid funding? No: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, Kagan; Yes: Ginsburg, Sotomayor

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Update: Here are three further questions that I left out.

5. Does the Anti-Injunction Act apply (which would make it impossible to challenge the law until someone has to pay the penalty)?  The Court was unanimous in saying that it does not apply.

6. Does the Anti-Injunction Law apply to all taxes, including de facto taxes declared not to be taxes by the legislature and president signing the tax into legislation?  No: the #1 majority justices; Yes: the #1 dissenting justices

7. Does the entire health care law fall if it the mandate is unconstitutional?  No answer on this question: the #1 majority; Yes: the #1 dissent

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One thing that was particularly interesting is that on questions 1 and 3 the Chief Justice joined the four liberals, while swing voter Anthony Kennedy, who is usually more willing than the Chief to join those four, remained with the three conservatives in the dissent. Another was the fact that seven justices agreed on question 4. These two facts, I think especially the second, was what led the NPR reporter to notice that this decision really breaks from the narrative.

What struck me was how similar this is to what actually happened with one decision that the usual narrative takes to be one of the most bitter partisan divisions, decided for purely political reasons. That decision is 2000's Bush v. Gore, which had three questions that had different lineups.

1. Was the Florida Supreme Court's handling of the 2000 election compatible with the equal protection clause of the 14th Amendment? No: Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Breyer; Yes: Stevens, Ginsburg

2. Is Dec 12 the date recounts need to be settled, and thus the best remedy is to go with the original vote count rather than allow recounts beyond Florida's final date? Yes: Rehnquist, O'Connor, Scalia, Kennedy, Thomas; No: Stevens, Souter, Ginsburg, Breyer (this was the part along typical partisan lines)

3. Did the Florida Supreme Court violate Florida law? No: Stevens, Souter, Ginsburg, Breyer; Yes: Rehnquist, Scalia, Kennedy; uncommitted: O'Connor, Kennedy

Seven justices agreed that there was an equal protection violation, and five agreed that Florida had set a date for recounts to be ended, a date that wasn't met. Four disagreed with the latter majority and wanted a recount to go beyond the date the majority had recognized as Florida's required date. But the important constitutional question of a violation of equal protection rights was supported by seven justices, and this is just about never recognized in those who put forward the usual narrative on this case. I've long thought that if anyone was being judicially activist here, it was the two justices who saw the constitutional problem but who refused to recognize Florida's deadline for recounts to be done by. But the conservatives and moderates usually instead get blamed for deciding the case based on their poltical views. It's an interesting case of two liberal justices recognizing that the conservatives had the constitutional question right, just like in the Medicaid part of the health care cases. It's refreshing to see a mainstream media reporter recognize it with the health care case. It would be nice if those who put forward the usual narrative would recognize something similar with cases like Bush v. Gore.

Notes on Job

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When Jeremy Jackson covered the book of Job in his Tuesday night Bible study from 1995-1996, the studies were not recorded, but he did produce a three-page, single-spaced set of typed notes as a result of those studies. It occurred to me recently that I could make those available alongside the audio for the studies that I have been able to put online, so here they are.

For more Trinity Fellowship sermons and Bible studies, see here.

This morning I was listening to yesterday's segment of Tell Me More on NPR on whether same-sex marriage would legally require allowing multiple marriage. The correct answer, of course, depends on which arguments are used for same-sex marriage, because some of them do require allowing multiple marriage, and some of them don't. If you argue that people should be able to marry whoever they want, as long as it's consensual, then there seems to be nothing to rule out multiple partners at once. If you argue that it's a violation of gay people's rights to prevent them from marrying someone they have an orientation toward when straight people get to marry someone they have an orientation toward, that sort of argument doesn't easily translate to marrying more than one person at a time. You're trying to give equal rights to everyone, and the rights you give might restrict it to one partner per person.

Jonathan Rauch was one of the guests on that segment. His overall argument is that same-sex marriage doesn't threaten traditional marriage but adds to it, since it doesn't actually detract from anyone's traditional marriage. It doesn't subtract marriages but adds them, and we need more marriage, so same-sex marriage can only help. His argument isn't sensitive at all to the lines of thought involving natural purposes, as traditionally marriage has been thought of, so it doesn't touch some of the more common arguments against same-sex marriage. But his dismissal of that kind of argument isn't new. He's written much of the subject and standardly argues that way. Here's he's assuming there's no such argument without actually arguing against it, but I think he has spent time arguing against it elsewhere.

But here's an interesting argument that's new to me:

Remember, fundamentally what I tell people is when straights get the right to marry three people or their dog or a toaster, gay people should have that too. But until then, that's not what we're talking about. We just want to be able to marry someone instead of no one.

On one level, this argument is silly. There's no ban on gay people marrying anyone, and there's no ban on them marrying anyone that other people of their sex can marry. In that respect, they have the same rights as straight people of their sex in a location where there's no legally-recognized same-sex marriage. What they don't have is the rights that people of the opposite sex have, namely to marry someone of their sex. So you can't argue for same-sex marriage by saying that a gay man doesn't have the same right I have to marry a man. As a heterosexual man, I don't have that right either. A gay man has the same rights I do with respect to the class of people we can marry. (Well, technically, that's true only if he's married. If he's not, then he has a much larger group he can marry, since it's above zero. So, to be more careful, an unmarried gay man can marry anyone of the same class of people that an unmarried straight man can marry.)

But what Rauch really means is that a gay person can't marry anyone in the class of people they'd want to marry, while straight people can. He's arguing for that right for gay people too. Given that he wouldn't want to marry a woman, giving him that right doesn't help him with the actual goals he might have for himself in marriage, which would be to be married to a man.

This argument, interestingly, would not help with interracial-marriage bans. Rauch's resistance to multiple marriages from a same-sex marriage perspective is that only allowing some options is enough. It's not violating his rights if you prevent him from marrying dogs, toasters, and so on, as long as you're doing that with straight people too. By the same reasoning, though, it's not violating his rights to prevent him from marrying black people, as long as you're doing that with straight people too. He's allowed for the compatibility of same-sex marriage with opposing multiple marriage on one level, but you have to look at all the moral positions and arguments he endorses to see if his view really allows for it. You have to bring in other moral premises to see why interracial-marriage bans are wrong, for example, because his argument doesn't get you that far. The question is whether other arguments he'd agree with can supply the necessary resources to argue against interracial-marriage bans. But then there's also the possibility that moral arguments he gives for same-sex marriage would also provide resources to argue against banning multiple marriages.

So his argument here doesn't show that he can resist multiple marriage consistently. It shows that someone could support same-sex marriage and reject multiple marriage. Whether he could depends entirely on the arguments he uses for same-sex marriage, some of which do require recognizing multiple marriage and some of which don't. I do think quite a lot of them do, and many of those are presented by people who want to avoid legal recognition of multiple marriage. This issue will eventually reach the courts, and it's one that those who deal in the business of moral and legal arguments should think about more carefully.

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