Supreme Court rules on same-sex marriage
A key tenet of jurisprudence is that no judge ruling on a case should have a personal bias or have taken a personal role in a matter before a court. Such an example would be a former executioner ruling on whether the death penalty was supported by the constitution. You wouldn’t want someone who spoke in favor of undocumented alien deportation ruling on the constitutionality of a state’s immigration laws. When one’s personal involvement in a matter brings into question their objectivity it falls upon that judge to recuse themselves from the case to avoid just what we experienced this week.
When the matter of same-sex marriage was before the Supreme Court, how many people were aware that two of the justices that ruled in favor of same-sex marriage had actually presided over such marriages?
As recent as this past May 17th, just as the Supreme Court of the United States was considering the same-sex marriage case, Justice Ruth Bader Ginsburg presided over a same-sex wedding.
Ginsburg pronounced two men married by the powers vested in her by the Constitution of the United States. Is there any doubt that she had a clear personal bias in the matter?
Court violates own rules
There is a Code of Conduct under which federal judges – including U.S. Supreme Court Justices – are bound to comply. (Justice Kennedy stated on March 14, 2013 that he and the other justices of the Supreme Court consider the Code of Conduct to be “absolutely binding.”) Canon 3A(6) of that Code of Conduct requires that a judge “not make public comment on the merits of a matter pending or impending in any court.” Canon 2A of the same Code provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Finally, a federal statute, 28 U.S.C. sec. 455(a), further mandates that a federal judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
This wasn’t the first time Ginsburg had presided over a same-sex wedding. This most recent was at least the fourth time Ginsburg has conducted a same-sex wedding. How can she reasonably expect the public to respect a decision on such a matter when she has shown a clear bias? It makes one question whether Ginsburg advanced years is affecting her conduct as a Supreme Court Justice.
Alas, Ginsburg is not alone in her bias on same-sex marriage. In 2014 Justice Elena Kagan presided over a wedding of two men.
Yet even though Justice Kennedy has spoken out about the “absolutely binding,” canons of conduct, he himself sat by while Kagan and Ginsburg’s votes carried the day. Kennedy voted in the majority, writing the majority decision that included two votes that should never have been included by his own words. In this matter, at least, Kennedy is the most hypocritical of them all. Without Kagan and Ginsburg’s votes in the affirmative, Kennedy, Breyer and Sotomayor’s votes would’ve failed to form a majority.
Sadly, none of dissenters, Roberts, Alito, Thomas nor Scalia mentioned the conflict of interest two of the majority Justices demonstrated. All made solid arguments about the government’s role in marriage, but none spoke out on the validity of a ruling preceded by actual participation in the matter the court was ruling on.
Recusal is not a rare event; judges do so on a daily basis. When the highest court in the land disabuses itself of its own rules of conduct, how can anyone respect their opinions in future cases?
Court rules on Obamacare
Another decision released this past week was on government subsidies for individuals who live in states that chose not to set up their own healthcare marketplaces. How long will it be till we find out some of the justices have family members receiving subsidies from one of the 36 states that chose not to set up their own healthcare exchange?
No matter how you come down on same-sex marriage or Obamacare, it should strike fear into the hearts of the people that a case could come before the court and be decided by justices that have a stake in the outcome. How does a justice rule on the constitutionality of a law when they’ve personally participated in the matter at hand?
Not such a Supreme Court after all.