Sunday, July 5, 2015

Three rulings and the end of the world as we know it

previously published in the Terre Haute Tribune Star, 5 July 2015

Does the Supreme Court have a publicist?

The three decisions delivered last week, one on the Affordable Care Act (ACA), one on the Fair Housing Act and then on marriage equality couldn’t have generated more buzz. Each one of these is worth its own essay but in the fast paced world of “news” three weeks from now no one will be focused on these so I’ll write a bit about each one here. Typically I prefer to write about people’s reactions to events. I’m going to deviate a bit and write my own impressions of these cases.

The 6-3 ruling on the ACA really shouldn’t have been a surprise. “Intent” is a major factor in conservative jurisprudence and the Supreme Court has five conservative justices (six really but no one likes to suggest Breyer is a conservative). As Chief Justice Roberts wrote for the majority, the intent of Congress was to improve insurance coverage, not wreck the markets, so the “inartful” language in that section of the law that King v. Burwell was based on makes no sense in the wider context of the law. Exactly.

Justice Scalia, however, saw it different and said what could be clearer than the clear language of the text. Yet, in Washington, D.C., et al v. Heller, Justice Scalia, writing for the majority, found an individual right to bear arms in the second amendment which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plain and simple reading of this notes the well regulated militia as the reason for the right of the people to keep and bear arms. Yet, Scalia’s opinion writes extensively about what the meanings of plain and simple terms meant “then” including a long discussion about rights not enumerated in the Constitution but that were already understood and then cited a raft of documents including English Common Law. Reading Scalia’s decision in Heller is one of the best examples of why “fundamentalism” is so wrong on its face. Yet, Justice Scalia seems less able to infer the intent of Congress from six years ago than he is the intent of the founders more than 200 years ago.

By upholding the use of statistical evidence of disparate impact in housing cases without the need to show discriminatory intent the Supreme Court allows us to hold our policies and our actions accountable even when our intentions are good. This is big because the Supreme Court in the early 1980s disallowed the same kind of analysis in employment discrimination cases.

Still, today, evidence of intent is necessary to prevail there. Perhaps time is ripe for a change in employment law, too. In any case, for those who point to “institutional discrimination” this is a big win because intent is not necessary when the practices or rules lead to discriminatory outcomes. Sometimes intent to do “good” is insufficient. We must look at outcomes of our practices. We are more residentially segregated today than we were in the 1950s. This causes all kinds of problems from inequality in schooling, to gerrymandered legislative districts, to an institutional barrier to wealth accumulation for minority peoples. Intent is subjective to determine, whereas outcomes are not.

The 5-4 ruling on marriage equality, no doubt, created the most furious responses. Suddenly the rainbow flag meme was everywhere.

The backlash began as well with such typically American extreme reactions as “the end of civilization was upon us.” This is similar to the response to Loving v. Virginia, the Supreme Court decision that legalized interracial marriage. The laws were defended eerily similar to how same-sex marriage has been justified: Religious grounds, a dubious claim to damaged children and a historical and factually inaccurate claims of the “natural order” and universal forms of marriage.

Does anyone really think that civilization has fallen apart since 1967? Yes, white supremacists do. Revisit Obergefell v. Hodges in 50 years and there will no doubt be other social issues that are front and center that threaten civilization as we know it having survived marriage equality; that is if climate change hasn’t ended civilization as we know it.

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