Consistency is not a requirement for a Supreme Court Justice. Over the last two years, in an enormous number of cases, we’ve seen some peculiar contradictions from both the so-called conservative and liberal wings of the court.
Liberal justices believe in a living Constitution, but think time stands still for the Voting Rights Act.
Chief Justice John Roberts thinks the court has to bend over backward to preserve Obamacare because striking down a federal law is so very serious, but he has no such compunction about overriding Congress’s judgment on Section 4 of the VRA.
Liberal justices think the feds can dictate health care but not marriage.
Conservative justices thinks the 10th Amendment protects the states from Obamacare but not from intrusion into marriage.
Justices Breyer, Ginsburg and Kagan have no problem hearing a case (Windsor) that the feds won’t defend, but they won’t take a case a state (California) refuses to defend.
Chief Justice Roberts in essence rewrote Obamacare to create an opt-out for Medicaid, but on DOMA Congress deserves full deference.
Liberal justices ignore Congress when it states Obamacare is not a tax, but say its formula in Section 4 of the VRA can’t be second-guessed.
Yes, there are arguments to draw fine distinctions between these sorts of seemingly contradictory cases, but one gets the sense that such arguments are contrived. What we see, in the broadest terms, is that justices calibrate the degree of deference to Congress based on the desired ruling and likewise construe issues like “standing” or “case and controversy” to suit their purposes. The jurisprudence of the 10th Amendment is entirely muddled.
It is enough to make one cynical about the court and, worse, to confuse lower courts trying to make sense of all this. The real lesson for political conservatives however is that relying even on the most exacting justices is foolish. The way to advance conservative policies is to elect conservatives in state and federal government. Those who declare they’d rather have 30 “real conservatives” than a majority in the U.S. Senate are daft. Like that TV ad, more is better.