Submitted by Charles Knighton
In next Sunday’s Advocate, Mr. Jeff Cumberbatch has promised a discussion of last Friday’s US Supreme Court decision sanctioning the constitutional validity of same-sex marriage for its “shock value and legal reasoning ” rather than its local relevance. I particularly look forward to his treatment of the legal reasoning underpinning this decision, for in my opinion it was not based on a dispassionate reading of the Constitution.
Rather, this 5-4 ruling was a reflection of the political orientation, values and visceral feelings of each justice; as their “questions” (actually pronouncements) showed during oral arguments, every justice except perhaps Anthony Kennedy came into this case with his or her mind made up.
Each side presented elaborate rationales to justify its views, but legal merit did not determine which side prevailed. This ruling simply represented the results of a mini-election on a court as nakedly partisan and polarized as the country itself—a court with four “blue” justices, four “red” justices, and one swing vote. It is becoming increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in spiffy robes.
It was not always thus. Until recent decades, the court’s landmark decisions often came in one-sided rulings (Brown v. Board was 9-0) Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn’t happened since Ronald Reagan appointed Kennedy, and it isn’t likely to happen again. We need to drop any remaining pretense that the justices of the US Supreme Court are impartial arbiters calling “balls and strikes” on the major issues dividing America today. To me, they call them as they prefer to see them.
As one of Mr. Cumberbatch’s nine loyal readers, I look forward to his take in next Sunday’s Advocate.