Supreme Court this week
On Wednesday the Supreme Court released two decisions regarding the right of same sex couples to marry. On the face of it, these decisions are civil rights block busters. It capped what was said to be the most important judicial week in this century and maybe in the last 80 years. But the blockbuster week actually started on Monday with a third important decision.
The first blockbuster case decided was the voting rights act litigation. The court upheld the law, but struck down the maps used to implement the law. In essence it guts the intent of the law, since the justices know full well that by striking down the use of the maps, the law will for all practical purposes die. It appeared that the court would act largely in tune with its own political culture and many pundits speculated that this would signal the fate of the two most important cases still outstanding. In a way if did, but like most issues involving the Supreme Court it was complicated.
The most immediate result of the striking down of these maps was in the Texas legislature where the leadership called for a special session to reconsider maps which were previously approved by that body but later struck down as unacceptable by the federal elections committee. It is likely that some version of the same map will be redone and since oversight authority from the federal authority has been removed, the new maps may go into use as early as the next congressional election. The court in essence handed the Texas legislature both the authority and responsibility of considering the new maps, without the interference of the federal authority.
The second decision was in regard to the Defense of marriage Act (DOMA). DOMA was largely passed to curb state authority and implement a separate Federal policy which did not recognize same sex marriages, even if these marriages were lawfully performed by the state. DOMA represented a shift of power from State government to the Federal government with regard to the definition of marriage for federal benefits. This fantasy of Federal control created widespread issues and in the end was not sustainable. One reading of the decision is that the court simply bowed to the practical needs of the country. Something the Supreme Court has done in the past with great regularity. But I believe the DOMA decision represents a more fundamental shift in the court which will embolden the states to act in other areas without fearing federal consequences.
No where is that more evident than in the CA case, where the court was widely expected to rule in favor of the legality of the CA ballot initiative which outlawed same sex marriage. By a 5-4 decision, the court ruled that the plaintiffs did not have standing to bring the case to the Supreme Court. In the DOMA case the federal government refused to litigate the repeal of the statute yet the court still took up the matter.
The Supreme Court failed to take up the CA case where the state of CA agreed with the lower court that the ballot initiative was invalid. Since CA refused to bring the matter to the Supreme Court the court found that the plaintiffs simply did not have standing to bring the matter before it. It is a well established principal that in order to gain a decision from the Supreme Court then at least one litigating party must have standing to bring the matter. The Court found no such standing and therefore it declined a decision.
This is an artful dodge of the issue since the Court did not confront it directly. Clearly proponents of the initiative had hoped for a case where they had clear standing thus causing the Supreme Court to decide once and for all if same sex marriage would be condoned or denied.
Instead the plaintiffs got a State’s rights case, that the state did not endorse. States rights, is an issue that the majority of the justices no doubt have an affinity for. But in this case the state agreed with the lower court's decision that the plaintiffs did not have standing to even have the case decided by the Supreme Court. Had the Supreme Court overruled the lower court and taken the case, it would have meant that the Supreme Court itself would have ordered a state to do something. While it is easy to rile that congress cannot make laws that overrules the states, it is more difficult to be self-regulate and not bring those laws yourself.
When you take the three issues together I think you have to say that the Supreme Court sided with states’ rights, and has a mind set to do so in the future. This may have an impact for future legislation including health care reform. Yes the Affordable Care Act has largely been found to be constitutional. But in what context will that act be litigated for years to come. With a majority of the court so seemingly strongly entrenched along the lines of states’ rights, it will be difficult to see state sponsored challenges to the health care act not being looked upon favorably.
Some states including my own has long been against the Affordable Care Act. With a new emphasis on states’ rights these challenges may gain extra traction. As such, look for litigation about coverage, eligibility and reimbursement amounts. If for instance one state chooses to ask for redress of the portion of the law which sets out minimal coverage’s and is denied by the federal government. Then a plaintiff state might file and take to the federal courts for redress. If this happens the plaintiff will likely find a receptive Supreme Court. It may also signal the end of litigation based on the far more individual friendly commerce clause. It has been thought that the affordable care act would survive state challenges based on the far more familiar commerce clause of the United States Constitution.
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Rick