When the Massachusetts Supreme Judicial Court established the right of same-sex couples to marry 11 years ago, conservatives vehemently objected, predicting with complete inaccuracy that the consequences would be socially disruptive.
But in part to mitigate the accusation that they were acting solely out of dislike for those of us who are gay, lesbian, bisexual or transgender, they argued, as conservatives have been doing since the days of the late Chief Justice Earl Warren, that is was improper for appointed judges to overturn the acts of the popularly elected legislative and executive branches of government.
That denunciation of “judicial usurpation of the rights of the people” was a point that former President George W. Bush made repeatedly when he urged Congress to begin the process of amending the Constitution not simply to ban same-sex marriages, but also to retroactively cancel those that already occurred. Significantly, the recent series of decisions by federal district court judges and one federal appeals court to strike other state laws banning same-sex marriage have received a more muted response, especially from elected Republicans.
As the recently concluded term of the U.S. Supreme Court unfortunately demonstrated, conservatives in America have largely abandoned the notion that appointed judges should show much deference to the decisions of elected officials, at either the federal or state levels.
Having recently explicitly substituted their legislative judgment for that of the Congress and president in deciding how state and local jurisdictions shall be strictly supervised because of a history of racial discrimination on voting, having overturned more than 100 years of federal and state efforts to regulate the role of money in campaigns, culminating with the startling act of including corporations in the “people” referred to in the Declaration of Independence, and, having earlier this year ruled that the president and Congress were wrong to insist that states accept federal funding to increase medical assistance to their poorer citizens, the court has ended this term with a barrage against laws it does not like.
I do not argue that every one of those decisions was incorrect. For example, I do agree that the Massachusetts abortion buffer zone law was too broadly drawn. (In a similar situation, I was one of three members of the House who voted against the law banning protests by the vile bigot Fred Phelps at military funerals because it imposed restriction unnecessary to preserve the dignity of the funeral (David Wu of Oregon and Ron Paul were the others).
But I have never been one who has objected to the principle of judicial decisions holding particular statues unconstitutional, even when I disagreed with the application of the principle in particular cases.
It is the conservatives who, for the past 60 years, beginning with the Supreme Court’s desegregation decision, have argued that it was a violation of democratic principles for the courts to make these important decisions rather than defer to Congress or the state legislatures.
Not only have conservatives in America now become the major advocates of judicial nullification of actions taken by elected officials, some of their most strident recent criticism of the court has been when it has failed to do that sufficiently. Chief Justice John Roberts himself has joked about the vicious reaction he received from many conservatives for his vote upholding most of the Affordable Care Act – although regrettably he is one of the five responsible for the cancellation of the congressional decision to extend adequate medical care to millions who do not have it. A few years ago, when the court decided to uphold a far-reaching Connecticut statute that allowed private property to be taken for economic development purposes, the right wing was furious that the court upheld policy of the Legislature and governor.
It is not simply in matters of constitutional interpretation where the judicial conservatives have freely substituted their own policy views for those of Congress and the president. In one case where the question was whether or not people who are victimized by corporate fraud could sue the businesses that had helped perpetuate abuse, Justice Anthony Kennedy angrily repudiated an argument made by several congressional committee chairs in a friend-of-the-court brief that the court should not decide this on the grounds of what was the best economic policy, but rather should strictly interpret the statue. And when a conservative district court judge in Washington oddly ruled that Congress did not mean what it said when it gave the Commodities Futures Trading Commission the duty of restraining speculation in the 2010 Financial Reform Act, he completely disregarded the brief submitted by those of us who had voted for the bill in the House-Senate conference, reaffirming that we had in fact meant exactly that.
There is a point here that goes beyond the pleasure I always take in pointing out the hypocrisy of my ideological opponents. The Supreme Court is now strongly inclined to impose conservative ideology via Constitutional interpretation on a broad range of public policy. It is true that Kennedy and to some extent Roberts occasionally deviate from this, but Justice Samuel Alito has surpassed even Justices Antonin Scalia and Clarence Thomas in his ideological purity.
The relevance of this to the next two elections is very clear. Four of the sitting justices are in their late 70s or older. This means that there is a strong possibility that President Obama will have a chance to appoint another justice before his term expires, but his ability to do so will be determined not simply by the health of the justices in question, but by the composition of the U.S. Senate. The increasing partisanship in the Senate, the continued virulent influence of the tea party and recent history strongly suggest that even if a vacancy occurs, Obama will be prevented from filling it.
Even more ominous, this means that the presidential election of 2016 will have a major impact on the question of whether or not the conservative domination of the court will not only continue, but increase.
By the end of the second term of the president elected in 2016, four justices will be in their late 80s, two on the liberal side and two on the conservative.
This makes it highly likely that among the issues that will be determined in the next senatorial and presidential election will be the ideological makeup of the Supreme Court. Voters should act accordingly.
n Author’s apology: Because I was traveling, I missed a letter defending its writer’s opposition to same-sex marriage by noting that my June 8 column confused the Declaration of Independence and the Constitution. Guilty. An error in the transcription of my dictation, entirely due to my poor diction, resulted in the garbled phrase “The Constitution in the Declaration of Independence” rather than “The Constitution and the Declaration of Independence.” I apologize to anyone whose marriage suffered damage as a result.
Barney Frank is a retired congressman and the author of landmark legislation. He divides his time between Maine and Massachusetts.
– Special to the Telegram