The Clinton Herald, Clinton, Iowa

CNHI Special Projects

December 22, 2013

Supreme Court's year ends with plural marriage

Deck the halls, then book several: Plural marriage is now legal in the state of Utah, just in time for the holidays. We have the Supreme Court's landmark same- sex marriage decision to thank for it.

Yes, the same Supreme Court that struck down the most important provision of the Voting Rights Act in the year's other landmark case. And that retrospectively gutted the universal coverage promised by the Patient Protection and Affordable Care Act. So is the Supreme Court of 2013 radically liberal or radically conservative?

The answer, it turns out, is both. A review of the current court's year confirms that it is the most activist since the 1920s, with plenty for both sides of the partisan aisle to hate and plenty for each to love. Because the court is a composite body in which all votes count equally, no individual today determines its overall strategy. But hidden in the confusion of divergent opinions lies a pattern that might be described as Chief Justice John Roberts's message to the Republican Party about its future.

The Roberts paradigm runs something like this: Lose gracefully on sex and personal autonomy; win on race, class and social welfare, with a pinpoint strategy on targeted killings and drone strikes. Remarkably, by following this plan, the Roberts court has turned into the most politically sophisticated wing of the Republican Party. Put another way, "John Roberts for President."

Start with the sex stuff. Liberals' favorite civil-rights case of the year is U.S. v. Windsor, which struck down the federal Defense of Marriage Act as a violation of the status and dignity of same-sex couples. By leaving in place state bans on gay marriage, the decision created a potential mess for couples married in the eyes of the federal government but not their own states. Yet liberals didn't care, because the decision, written by Justice Anthony Kennedy, was the legal culmination of the struggle for gay rights.

When the Supreme Court decided earlier gay-rights cases, such as 2003's Lawrence v. Texas, which struck down anti-sodomy laws, the conservatives, led by Justice Antonin Scalia, went a little bit berserk. In his Lawrence dissent, Scalia fulminated that the decision effectively gutted state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.

In 1996, dissenting in Romer v. Evans, the first important gay-rights case, Scalia accused the majority of having "mistaken a Kulturkampf" - German for culture war - "for a fit of spite."

In 2013, things were different. Scalia still dissented, but instead of invoking a culture war that his side had already lost, he criticized the majority's legal craft, characterizing its rationale as "rootless and shifting." Then, in defensive mode, he insisted that the supporters of traditional marriage would never want to "degrade, demean, and humiliate gay people."

Roberts joined the dissent, which was so different from the earlier Scalia efforts as to almost seem written by a different hand. It was as if this new Scalia, guided by the graceful Roberts, wanted to avoid the screaming headlines that his invective once seemed designed to elicit. The message to the Republican Party was fairly clear: Gay marriage is a losing issue, so let's go gentle into that good night of defeat, and take our victories where we can get them.

Room for those conservative victories turned out to be pretty wide in 2013. On race, the Supreme Court chose not to strike down affirmative action once and for all in Fisher v. Texas. It sent the case back to the lower courts to do their analysis again, buying time for the public's disillusionment with affirmative action to grow further.

The court saved its powder for Shelby County v. Holder, which struck down section 4 of the Voting Rights Act. That law, the heart of the electoral side of the civil-rights movement, required formerly discriminatory districts to preclear any districting changes with the Justice Department and a special three-judge court.

Technical and ill-understood except by experts in voting, the law was the perfect target for a Roberts special-forces operation. His opinion emphasized that the law was perfectly terrific when passed in 1965 to fight racism. He added almost diffidently that it was now based on "decades-old data and eradicated practices." Racism was over because, well, um . . . Barack Obama was elected president, wasn't he?

Justice Ruth Bader Ginsberg wrote a dissent demonstrating extensive evidence of ongoing racism in redistricting and voting. But her capacity for outrage was curtailed by the fact that her constitutional position was simply that the court should defer to Congress about whether the law was still needed. Deference is boring - and anyway, she and the other liberals voted against deference in striking down the Defense of Marriage Act.

No summary of the most important Supreme Court events of 2013 would be complete without mentioning the sleeper cell that Roberts brilliantly planted in his 2012 opinion in National Federation of Independent Business v. Sibelius, upholding the individual mandate of the Affordable Care Act. The headlines said Roberts had broken ranks with conservatives and showed extraordinary judicial restraint. Less noticed was his holding that the states could not be pressured to extend Medicaid to the poorest uninsured Americans - a holding joined by liberal pragmatist justices Stephen Breyer and Elena Kagan. Only this year did it become clear that roughly half the states would not join Obamacare, robbing the law of its ethical aspiration to ensure that all citizens have health insurance. Roberts the tactician had won a major victory without anybody noticing.

Rank-and-file Republicans and their political leaders may not be noticing the Roberts paradigm, but they should. Lose gracefully where you must, win quietly where you can. Fight your stealth battles, but be a gentleman about it. Roberts in 2016.

1
Text Only
CNHI Special Projects
  • Electric-grid attack fuels sniper-versus-hacker threat debate

    U.S. energy regulators' efforts to harden the power grid against snipers and terrorists are fueling a debate over whether they're diverting resources from other threats, like cyber attacks.

    March 14, 2014

  • VIDEO: Oklahoma high-speed chase ends in crash

    Authorities in Oklahoma City, Okla. say a man who stole a pick-up truck led police on a high-speed chase reaching nearly 120 miles per hour before crashing into a mini-van and two other vehicles.

    March 14, 2014

  • Screen shot 2014-03-14 at 12.39.21 PM.png Spring Madness: 3 apps to help manage your schedule

    Spring is imminent, and as you welcome the warmer weather, it's time to start thinking about home maintenance, school events and everything else you put off during the winter. These three apps will help you manage your schedule, no matter your organization style.

    March 14, 2014 1 Photo

  • 20140309-AMX-SNAKES094.jpg Researchers tackle mystery of how some snakes can fly

    Flying snakes sound like creatures from a bad B-movie, but these serpents are elegant gliders that have evolved a special skill that sets them apart. In two new studies, engineers have used simulations to try to decipher how the wingless reptile manages to remain airborne despite its lack of flight appendages.

    March 11, 2014 2 Photos

  • ERIC-HOLDER.jpg Holder: Heroin deaths an 'urgent and growing public health crisis'

    Attorney General Eric Holder, calling the rise in deaths from overdoses of heroin and prescription painkillers an "urgent and growing public health crisis," is outlining a series of efforts by the Justice Department to combat the epidemic.

    March 11, 2014 1 Photo

  • plane-skydiver.jpg VIDEO: Skydiver, pilot treated after midair collision

    A pilot practicing take-offs and landings got tangled up with a skydiver in Polk County, Fla., but amazingly, no one was seriously hurt.

    March 11, 2014 1 Photo

  • missing-plane.jpg In this tech age, how can a plane go missing?

    Call 911 from the side of the road, and GPS satellites can tell dispatchers exactly where to send help. Airline passengers have access to detailed maps that show exactly where they are during their journey. Hop onto WiFi, and somehow Google knows whether you're logging on from Lima or London, and will give you detailed suggestions about what to eat.

    March 11, 2014 1 Photo

  • Screen shot 2014-03-07 at 10.45.45 AM.png VIDEO: Penguin sweaters save birds trapped in oil spills

    A wildlife group in Australia is inviting volunteers to knit sweaters for the penguin population it conserves, because it says the sweaters can actually save the lives of birds caught in oil spills.

    March 10, 2014 1 Photo

  • Most deadly fraternity scraps initiation for new members

    Sigma Alpha Epsilon, one of the largest U.S. fraternities and the deadliest, said Friday it will ban the initiation of recruits, citing the toll that hazing has taken on its newest members.

    March 10, 2014

  • VIDEO: Michigan woman's death, mummified body hidden by auto-pay for six years

    The mummified body of a Michigan woman was discovered in the backseat of her car approximately six years after her death. The body was only found after the bank that foreclosed on the home ordered work on the property.

    March 10, 2014

Elections
Front page
Clinton Herald Photos


Browse, buy and submit pictures with our photo site.

Poll

Should the city of Clinton appeal the open records violation ruling that will cost taxpayers $40,600?

Yes
No
     View Results
AP Video
Olympics 2014
Featured Comment
Featured Ads
Blue Zones Project
Parade
Magazine

Click HERE to read all your Parade favorites including Hollywood Wire, Celebrity interviews and photo galleries, Food recipes and cooking tips, Games and lots more.