Sunday, June 28, 2015

United States Supreme Court Chief Justice John Roberts irritates liberals and conservatives because of his admirable judicious juridical views


There were two important judgments that the United States Supreme Court had delivered earlier this week, the first on June 25 and the second on June 26. The first was with regard to the The Patient Protection and Affordable Care Act, which is popularly known as Obamacare. In King Et Al vs Burwell, Secretary of Health And Human Services.

The question the court had to deal with was whether the Federal government could set up "ëxchanges" for insurance, which would allow citizens to choose between insurance agencies, and which would also allow the citizens to avail tax credits if they insure if it does not exceed eight per cent of a citizen's income. If not, the citizen will have to pay to the Internal Revenue Service (IRS.It also provides that those whose incomes are between 100 per cent and 400 per cent of the Federal poverty lines will have refundable tax benefits. The Patient Protection And Affordable Care Act allows for the setting up of "exchanges" where there are no state "exchanges", and this does not endanger the state "exchanges".

The court says, "the Act requires the creation of an “Exchange” in each State -- basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides
that the Federal Government will establish “such Exchange” if the State does not." The petitioners from Virginia had argued that tax credits cannot be availed in a Federal exchange and that the insurance policy would exceed eight per cent of one's income, and they will not be required to take the insurance policy.The court rejected the argument because it saw through the implications of the argument. If a sufficient number of people do not take insurance policies, then the state's attempt to make health care affordable falls through.

Chief Justice John Roberts delivered the majority majority judgment of 6-3, with six concurring and three dissenting.

If Roberts had not joined the majority, it would have been a close call of 5-4 as it had happened in the case of legalising same-sex marriage. The case came up when 14 same-sex couples, two of who have lost their partners, sought and failed in the lower courts of Michigan, Kentucky, Ohio and Tennessee for recognition of same-sex marriages performed out-of-state. The petitioners invoked the Fourteenth Amendment, which provides for Due Process and Equal Protection clauses.

Anthony Kennedy, who delivered the majority judgment and who is considered the staunch liberal voice, spoke eloquently of the institution of marriage, which is generally seen as a conservative institution by the so-called liberals and radicals. The irony of Kennedy's eulogy for the institution of marriage was not lost on the observers because one of the counter-culture or the hippie revolution of the 1960s and the 1970s beliefs was the disregard for marriage, and the alarmingly rising rate of divorces and out-of-wedlock births that followed. These trends are supposed to have delivered the death blow to marriage as such. The LGBT community coming from the radical end of society seeking the sanction of marriage has its ideological contradictions which liberals want to gloss over in a sheepish manner. Instead, they take pride in their victory in making same-sex marriage legal.

Kennedy argued: "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right." But Roberts in his dissent had observed acutely:"Those who founded our country would not recognize the majority's conception of the judicial role ... They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges."

Both Kennedy and Roberts seem to hold valid views. But in a deeper sense, Chief Justice Roberts' conservatism has the greater legal humility. Roberts is saying when called upon to decide on what is good and bad, what is right and what is wrong, the judges do not have any prerogative in the matter.

Roberts is not holding out against same-sex marriage arising from his conservatism. That point of view has been effectively expressed by Justice Antonin Scalia. Roberts is merely saying that judges cannot direct social change. The source of social change is society itself and not the court. This is a point to ponder about.









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