The Supreme Court speaks not only through its rulings in cases argued before it, but also through its choice not to hear certain cases -- the ones denied certiorari, in legal lingo. By refusing to hear claims brought by victims of Bush-era torture and detention practices, and failing to decisively reject the government's array of bad excuses for denying them a modicum of justice, the Court in recent years has sent an appalling message of indifference and impunity. These missing cases constitute a profound stain on the court's record, and they are worth recalling on this week's tenth anniversary of John Roberts's swearing-in as Chief Justice.
Today marks the 10th anniversary of the day Chief Justice Roberts was sworn in to the Supreme Court. In that decade, he has led a Court that has radically reshaped vast swathes of the law, undermining constitutional protections for civil rights and voting rights, reproductive freedom, workplace fairness, the environment, gun violence, consumer fairness and representative democracy as a whole.
In King v. Burwell, decided last Thursday, the Supreme Court has once again (no doubt inadvertently) given us a lesson in the philosophy of language. The dispute in the case is over the meaning of the phrase "exchange established by the state." Chief Justice John Roberts, writing for the majority, argues that the phrase can and should be read to include an exchange established by the federal government. He explains that "exchange established by the state" is ambiguous because when read in context (as he proceeds to do) it means something different than it does when read in isolation. Justice Scalia retorts that by the logic of such a reading, "everything is ambiguous." That's both right and not right.
The SCOTUS ruling to legalize same-sex marriage is a victory for human rights. The decision follows in the footsteps of its 1967 decision in Loving v. Virginia that outlawed states' bans on interracial marriage, an earlier victory for marriage equality. But there is a huge difference in the two rulings.
Such an opinion by Chief Justice Roberts would not only strengthen the decision but put into the Supreme Court's toolbox the importance of viewing discrimination against someone on the basis of her sexual orientation as simple sex discrimination. This would help bring "heightened scrutiny" into consideration in future gay-rights cases.