When the Court considered the scope of the Fourth Amendment’s protections in Riley, it didn’t say it was up to Congress or state legislatures to decide how much privacy Americans enjoy when it comes to their cell phones. Instead, the Court considered the text and history of the Fourth Amendment, as well as the Court’s precedents. The Court should do the same thing this year when it considers the scope of the Fourteenth Amendment’s protections in the marriage equality cases.
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Articles & Commentary
As America's second founding turns 150, and as the Supreme Court continues to hear cases that draw on its constitutional legacy, it’s important for all of us—including the justices—to remember these forgotten founders and to reflect on their constitutional handiwork. This is nowhere truer than in Obergefell, where the Constitution’s text requires marriage equality.
When the Justices hear oral argument in the marriage equality cases later this month, they should remember Roberts’s advice to “take them at their word.” The Framers made a conscious decision to write the Fourteenth Amendment as a broad guarantee of equality for all, preventing majorities in the states from discriminating against any person or group of persons. It is the Supreme Court’s job to enforce the Constitution’s guarantee of equality for all.
With the Supreme Court about to take up the momentous issue of marriage equality for gay and lesbian couples in Obergefell v. Hodges, it’s noteworthy that on April 10 48 years ago, the court heard oral argument in Loving v. Virginia, a case that produced the court’s most important ruling to date vindicating the fundamental right to marry. Loving has figured prominently in recent lower court decisions upholding the right of same-sex couples to marry, and has been relied on in Obergefell by those urging the court to strike down state laws denying that right.
As 7th Circuit Judge Richard Posner wrote last year in an opinion striking down same-sex marriage bans in Wisconsin and Indiana, the argument that tradition supports the bans “runs head on into Loving.” That conclusion should resonate with Chief Justice Roberts. And if Roberts is true to his confirmation hearing testimony, he should find in Obergefell that state laws prohibiting same-sex couples from marrying violate their fundamental right to marry.
The public health community, various members of the energy sector, several states, and the Supreme Court’s own precedents are all on the side of the EPA’s new standards. When the court decides this case in a few months, here’s hoping that a majority of the justices are, too.
At any argument, there are always tough questions for both sides, but the government has to have been happy about the questions that were asked during the King argument — as well as the answers that Verrilli was able to give.
If the Court were to rule against the government, there would not be anything the states or the courts could do if Congress did not step in to fix the problem—yet another reason to hope that the Court does what the ACA’s text requires and holds that the tax credits are available nationwide.
When the Supreme Court heard oral argument this morning in King v. Burwell, the latest challenge to the Affordable Care Act, everyone was eager to hear what Chief Justice John Roberts and Justice Anthony Kennedy, widely viewed as the likely swing voters in the case, would have to say. Chief Justice Roberts was uncharacteristically quiet during the argument, but Justice Kennedy wasn’t. He asked a number of questions that seem to provide a good window into his thinking, and supporters of the ACA should be happy about what that window appears to have revealed.
The text of the Affordable Care Act is clear that tax credits are available for eligible Americans nationwide, as part of the law’s overarching goal to provide quality, affordable health care for all. The King challengers’ contrary interpretation of the Affordable Care Act fails basic rules of reading comprehension, not to mention long-established rules on how to interpret statutes. Their claims shouldn’t get a pass from the Supreme Court.