Even Unanimous Decisions on the Supreme Court are Political (Part II)

Scalia shows proof that from 1789 to 1822 there was no use of the recess appointment clause. From 1822 to 1862 there was minimal exploitation of the clause. In other words, the framers generation applied the recess appointment clause appropriately and did not exploit it despite changing dynamics within the Senate and executive branches. Most of the exploitation of the clause occurs from the FDR administration to the present.

I do not know what happens behind closed doors at the Supreme Court, but I can speculate. This case appears to be a political compromise. The liberals agreed to join the majority opinion if Justice Kennedy joined their concurring view of the majority opinion to redefine the “recess appointment clause”. I believe the liberals on the Court truly believe the recess appointments that Obama made were Constitutional, but they were not going to win (5-4) the battle. Hence, they compromised with swing vote Justice Anthony Kennedy so they could win the war.

Would this level of politics really happen on the Court? Of course! Consider the cases: Unites States v. Windsor and Hollingsworth v. Perry decided in the same session of the Court in 2013 as the NRLB case. Windsor made the Defense of Marriage Act (DOMA) unconstitutional and Hollingsworth was a gay marriage case. Both cases were similar in the fact that it was highly debatable as to whether or not the plaintiffs had standing for the Court to rule on these cases. In Windsor, a lower court ruled DOMA was unconstitutional and the Obama DOJ did not contest the decision. The Obama administration however, purposely withheld Windsor’s refund for higher estate taxes (single persons pay more than married persons) that she was forced to pay when her partner died. Why would the DOJ fail to contest the case but withhold Windsor’s refund? In order for Windsor to have standing in the Supreme Court there would have to be some sort of damages she is trying to reconcile to standing. If she received her refund there would be no reason for the Court to hear to the case. Obama wanted the Court to legislate from the bench and find DOMA unconstitutional and that is exactly what happened. Four Justices however, contended that the Court had no standing because the DOJ was not contesting the estate tax refund. In Hollingsworth, a California conservative group filed an appeal to the Court to overturn a lower court’s finding that Proposition 8 (marriage is between a man and a women) was unconstitutional. Once again, in Hollingsworth, the plaintiffs suffered no damages so the Court ruled they had no standing to hear the case. Scalia and Roberts voted the same in both cases: the plaintiffs had no standing. Alito, Sotomayor, and Kennedy voted the same in both cases: the plaintiffs had standing. Thomas voted in Windsor there was no standing and in Hollingsworth there was standing. Justice Breyer, Kagan, and Ginsberg voted in Windsor for standing and in Hollingsworth for no standing. It is interesting to note the four Justices that switched votes. Do they have different views on the standing doctrine or do they have some other political motive. In my view, the liberal justices wanted to the Court to legislate that DOMA was unconstitutional. However, at the same time, the liberal justices did not want to take up the gay marriage case and henceforth it allowed gay marriage to continue in California. I believe Thomas was convinced to change his vote because he wanted to protect the will of the people over initiative cases. Twenty-Six states allow the people to change their State’s constitution through referendums. Since the Court ruled that people fighting for these referendum initiatives within the states had no standing, it set a precedent that Thomas truly did not believe in: It denies the free will of the people in the political process. Conveniently, the DOMA ruling was cited in Obergefell two years later to rule gay marriage is a fundamental right.

Sotomayor is not immune to playing politics. In Schuette v. Coalition to Defend Affirmative Action in 2014 Sotomayor claims throughout her dissent that “race matters”. Michigan passed a new law to its constitution via a referendum: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of races, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Sotomayor found this new law in violation of the “equal protection clause” of the Fourteenth Amendment because “race matters” when determining a person’s qualifications for college. Sotomayor rambles on senselessly about the history of discrimination as well as statistics back in 1960s or earlier. These narratives have no bearing on the case. Sotomayor points out that the University of Michigan saw its black enrollment decrease from 12.5% to 10% since the referendum passed. What this means is that 1 in 40 opportunities before the referendum passed had been taken from a deserving person and given to a less qualified person simply for being black. And there are even more opportunities hijacked from deserving persons by Hispanics. This is discrimination and the precise reason for “equal protection”: when one group of people is treated differently than another group. The Michigan law defines equal protection to perfection.