God Bless Associate Supreme Court Justice Sonia Sotomayor!
When she was nominated, my guess, studying her previous decisions and her life’s story, was that eventually she might become the Justice he regretted appointing the most.
Yes, she’s a liberal Democrat. And, yes, she usually votes with the liberal wing of the Court.
But her order delaying a provision of the Obamacare law on New Year’s eve in favor of the Little Sisters of the Poor set some boundaries on her liberalism.
To recap that argument, The Little Sisters are an order of Nuns that runs nursing homes for seniors who cannot afford such niceties as getting old. They do not wish to sign a piece of paper authorizing the Government to force an insurer in their name to make contraception available with the health insurance they are obligated to provide their employees, since that goes against their religious beliefs.
Now Barack Obama thinks that the government should force health insurers to pay for birth control irrespective of the employer’s religious beliefs. And while the optics of beating up on an order of Nuns running nursing homes for the poor aren’t good, he wants to (pardon the phrase) stick to his guns.
Fortunately, Sotomayor was willing to listen to the Nuns and their lawyers, and she has issued injunctive relief until the full Court can decide what to do. I expect that is because she has a very healthy respect for the First Amendment and is not willing to bow to political expediency.
She also, last week, facilitated a temporary halt to homosexual marriages in Utah and has, in doing so, probably precipitated the final decision the Court has been avoiding, which is whether or not two males or two females have a constitutional right to be married to each other.
While you may think of it as the ultimate social values case, in truth, it is the ultimate state’s rights case. It is the biggest test yet of the 10th Amendment, which says:“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
One would observe that the word “marriage” is neither found in the Constitution nor in the Bill of Rights.
The current Court has essentially said in both the Obamacare individual mandate case and the previous homosexual marriage case overturning the Federal Defense of Marriage Act, “Don’t blame us when you elect crappy legislators. Fix it yourselves.”
In the case of the Obamacare case, the Court said that, in point of fact that the “fine” for not having health insurance was indeed a tax, and the Constitution allows the Federal Government to levy such a tax. Whether or not you agree is irrelevant. You elected these clowns; and you can, if you don’t like the law, un-elect them. In the past, this nation has even rewritten the Constitution when it has been provoked enough, as in the case of prohibition. So it CAN and HAS been done.
In the DOMA decision, the Court decided that when a state says homosexual marriage is legal, the Federal Government CANNOT un-recognize the state’s action, which is what the Defense of Marriage Act did. Contrary to what the mainstream media gushed, it did NOT endorse homosexual marriage; but it DID, resoundingly, endorse the 10th Amendment.
The more I read her opinions and the more I look at her legal history, I see her as the future swing vote from the left as Anthony Kennedy and, occasionally, Chief Justice John Roberts have been from the right.
By the time a case gets to the Supreme Court, from a legal standpoint, the emotion is gone.
It is up to each Justice to interpret the law as the Chief once told the Senate, by acting as an umpire calling balls and strikes.
The truth is, whether or not you agree with each member’s individual politics, there are no political hacks on that bench.
If the referral from Sotomayor sets up the 10th Amendment smackdown that is widely anticipated, remember that it could just as easily be an argument abut the legalization of marijuana or a speed limit of 110 miles per hour. The important part is not whether or not homosexuals can marry, but what the boundaries of the 10th Amendment are.
Whichever way both decisions go, it will probably just be the Court saying what it has said in the past: If you want better laws, elect better legislators. It is not up to us to bail you out of your stupid electoral decisions.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.