Supreme Court activism makes new law, just like in HOA cases

The following is relevant to many, many decisions, views and mindsets of the courts in HOA cases. I have encountered such “howevers” and “not applicables” in many HOA decisions. Here is a relevant excerpt of Chief Justice Roberts’ justification for the Court’s Obamacare decision.  My comments are in square brackets “[]”.

“Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under may seem plain “when viewed in isola­tion,’ such a reading turns out to be ‘untenable in light of the statute as a whole.  In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

“Reliance on context and structure in statutory interpre­tation is a ‘subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.’  For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. [Regardless of federal or state]. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.  [The end justifies the means].

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is con­sistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”

The dissenter Justices wrote:

“The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

What we have here is the making of new law by the majority of Justices, people, choosing to ignore long held legal doctrine on interpreting laws.  We are no longer under the rule of law, but under the rule of man.

I recall Justice Jackson’s analysis of the finality of Supreme Court decisions.

In the 1953 Supreme Court case, Brown v. Allen (334 US 443), Justice Robert Jackson commented,

“We are not final because we are infallible, but we are infallible because we are final.”  

(Jackson was the head of the US delegation to the Nuremburg Trials of Nazi war crimes).


Published in: on June 25, 2015 at 7:24 pm  Comments (1)  

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  1. “For Chief Justice Roberts is an honorable man, So are they all, all honorable men.”

    [My comment]. The reason HOAs are accepted and permitted to operate independent of the US Constitution follows from the criticism of the Justices by Scalia, quoted below. In simple terms, because the Supreme Court says it’s OK by virtue of its acts of omission, failing to defend the Constitution.

    Supreme Court Justice Scalia opens with, “I write separately to call attention to this Court’s threat to American democracy.”[1]

    “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.

    “We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text . . . . But the Court ends this debate, in an opinion lacking even a thin veneer of law. . . . No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

    “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

    “They [the majority Justices] are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’

    “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

    1. Excerpts from Supreme Court Justice Scalia’s dissent in the gay marriage decision in Obergefell v. Hodges (p. 69 et seq.).

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