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A day after Supreme Court Chief Justice John Roberts sided squarely with the Obama administration on the health care overhaul, the same jurist came out swinging against the court's ruling legalizing same-sex marriage nationwide.
In his dissenting opinion -- which he read from the bench for the first time in his nearly 10 years as chief justice -- Roberts charged Friday that the court had no right to intervene in what should be a democratic debate by the people, at the state level, over same-sex marriage.
"This court is not a legislature," he wrote. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be."
As for the state's role, he said: "The fundamental right to marry does not include a right to make a State change its definition of marriage."
The dissent underscored how unpredictable -- and to his critics, confounding -- the chief justice, appointed by a Republican president, can be.
He has earned many critics on the right for, twice, helping save vital elements of the Affordable Care Act -- conservative justices effectively accused him of twisting the law to save ObamaCare in Thursday's ruling. But in his dissent on the 5-4 gay marriage ruling, Roberts accused others on the court of, similarly, overstepping their bounds.
"It does sound like two different people," said Andrew Napolitano, senior judicial analyst for Fox News.
Roberts wrote in Friday's dissent: "The Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration.
"... But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens --- through the democratic process -- to adopt their view. That ends today."
Roberts was joined by two other conservative justices on the court -- Antonin Scalia and Clarence Thomas -- who each filed their own dissenting opinions.
"Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept," Roberts wrote.
The other dissenting justices were no less critical.
Scalia wrote: "But what really astounds is the hubris reflected in today's judicial Putsch."
And Samuel Alito wrote: "The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women.
"Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed."
But Roberts' dissent was striking, a day after his opinion upheld ObamaCare subsidies. That case centered on whether the language of the law, which technically limited subsidies to policies in exchanges set up by the states, could also apply to policies bought through the federal exchange. Roberts and the six-justice majority said Congress intended subsidies to be available for all.
His conservative colleagues viewed this as an overreach.
"We should just start calling this law SCOTUScare," Scalia wrote, joined by Thomas and Alito.
But on gay marriage, the conservatives stood together, particular on the issue of the high court's right to decide what they said was a state issue.
On this, the majority strongly disagreed.
"The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution," said Justice Anthony Kennedy, who read the majority opinion. As for the court's role, he said:
"The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."
Related:
- "Court is not a legislature": Roberts Rips Gay Marriage Ruling, Day After He Backed ObamaCare
- Obergefell v. Hodges (06/26/2015)
- Homosexual 'Marriage' Case - Roberts Dissenting 14-556_3204.pdf (local PDF attachment extracted from full case 29 pages)
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