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The U.S. Supreme Court last week concluded one of its most significant terms in years as the justices legalized same-sex marriage, upheld the controversial 2010 health law, and handed voters sweeping power to bypass their own legislatures and create competitive congressional districts.
The justices narrowly but decisively settled the legal question of whether the Constitution guarantees the right for same-sex couples to marry while turning away what seems to be the last conservative legal challenge to President Barack Obama’s signature domestic achievement – the health care law.
Legal analysts were divided on whether the court swerved left, but there was no question the justices plunged into a broad array of major issues, with Marc Spindelman, a professor of law at Ohio State University saying “it does seem to be a pretty momentous term.”
B. Jessie Hill, a professor of law and associate dean for academic affairs at Case Western Reserve University in Cleveland, said “the court has shown a willingness lately to tackle these absolutely huge issues that they seemed to be dancing around for a while.”
Kennedy and Roberts are swing votes
Chief Justice John Roberts and Justice Anthony Kennedy, both nominated by Republican presidents, emerged as the key votes on a court in where there is a vast chasm between the conservatives and liberal justices.
To the dismay of conservative Republicans, Roberts wrote the majority opinion that the 2010 health law allows the federal government to provide financial assistance to people buying health insurance even in states which did not establish their own marketplaces, known as exchanges.
But Kennedy, who joined Roberts in upholding the health law known as Obamacare, remains the court’s most powerful member because of his ability to weave back and forth among the four liberals led by Justice Ruth Bader Ginsburg and the four conservatives, who include Roberts and Justice Antonin Scalia.
“This term is a very important one for the court and for the Roberts court,” said Christopher Walker, a professor of law at Ohio State University and former law clerk to Kennedy. “Yet at the end of the day, most people would say it’s still the Kennedy court and not the Roberts court.”
The court’s term ranks in importance with 1992 and 1989. In 1992, the justices ruled that states cannot place an undue burden on a woman’s right to choose an abortion, and declared it violated the Constitution for a member of the clergy to deliver a prayer at a high school graduation.
Three years earlier in 1989, the justices ruled that states could not make it a crime to burn the American flag, or when Justice Harry Blackmun wrote a majority opinion declaring that it was unconstitutional for a county courthouse to display a Nativity scene.
Same-sex marriage ruling
What made this year’s term so exceptional was the ruling on same-sex marriage. Two years after Kennedy wrote the majority opinion striking down a federal law defining marriage as between a man and woman, he wrote the opinion last week invalidating the ban against same-sex marriage approved by Ohio voters in 2004.
Declaring that the Equal Protection Clause of the 14th Amendment guarantees the right for same-sex couples to marry, Kennedy wrote how rapidly opinions on same-sex marriage have changed among Americans.
“Changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process,” Kennedy wrote.
Kennedy wrote that until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.” But Kennedy added that “following substantial cultural and political developments” in the latter part of the 20th century, “same-sex couples began to lead more open and public lives and to establish families.”
Stephen Wermiel, a professor of constitutional law at American University in Washington, D.C., said the “idea of finding new constitutional rights is always something of great significance. The idea that we’ve gone from gay people having no right to engage in private sexual conduct in 1986 … to having the fundamental right to protect their dignity to marry is really remarkable.”
Drawing congressional lines
In another decision that could have sweeping impact on how the nation elects members of Congress, the justices upheld an Arizona system in which voters took authority to draw new congressional districts away from the legislature and handed it to an independent board.
Ginsburg, who wrote the majority opinion, concluded that states have turned toward independent commissions as “a means to curtail partisan gerrymandering,” in which the party controlling the state legislature draws up congressional districts favoring candidates from their own party.
The court’s decision clears the way for voters in Ohio next year to vote on a constitutional amendment to create a statewide panel to draw new and more competitive congressional districts. Currently, the Republicans control 12 of the 16 seats even though Ohio is one of the more competitive states politically in the country.
While Kennedy joined Ginsburg’s opinion to form a 5-4 majority in the Arizona case, he turned right and joined Roberts, Scalia, Samuel Alito and Clarence Thomas in upholding Oklahoma’s use of a coma-inducing drug as part of lethal injection of Death Row inmates.
And Kennedy joined the four conservatives to conclude that the U.S. Environmental Protection Agency had to consider financial costs when it imposed new rules on power plants to limit emissions of new pollution rules, such as mercury.
“The idea that Justice Kennedy is the swing vote means that although there are exceptions, it really is a conservative court,” Wermiel said. “Justice Kennedy is a conservative.”
“He may not be as conservative as Scalia or Thomas, but on the grand scale of things he is still a fairly conservative justice. It is a court that on occasion sees its way to expanding rights and liberties, but overall, I would still say it’s a pretty conservative court.”
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