Letter from America

Liberal turn

Print edition : July 24, 2015

Participants carry rainbow-coloured balloons at the Heritage Pride March in New York on June 28. A large turnout was expected for gay pride parades across the U.S. following the landmark Supreme Court ruling that said gay couples can marry anywhere in the country. Photo: Kathy Willens/AP

U.S. Supreme Court Chief Justice John Roberts (left) with fellow Justice Anthony Kennedy. Photo: LARRY DOWNING/REUTERS

The U.S. Supreme Court’s recent judgments on gay marriage, health care and housing suggest that even a highly conservative institution has to move with the times, away from the narrow confines of prejudice.

WITHIN the past month, the normally conservative United States Supreme Court has leaned in a progressive direction in three cases. The court, led by Chief Justice John Roberts, is weighed down by dour conservatism. Bulldogs of the old order, particularly Antonin Scalia, Samuel Alito and Clarence Thomas, seek to curtail any widening of human rights through strict interpretations of legal rulings. They believe that the U.S. Constitution (1787) should not be revised. Scalia, Alito, Thomas and Roberts are “originalists”, who believe that the original Constitution is the essence of liberty. When Alito went before the U.S. Congress in 2006 for his confirmation hearing, he said: “In interpreting the Constitution, I think we should look to the text of the Constitution and we should look to the meaning that someone would have taken from the text of the Constitution at the time of adoption.” Nothing after 1787 should be allowed to drive policy.

Originalism is acerbic and disagreeable, typically out of touch with the general tenor of American norms. The liberals in the court—Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—make up a minority of four of the nine. This is because the ninth judge—Anthony Kennedy, who was appointed by Ronald Reagan—typically votes with the conservatives. He is, however, known to swing to the liberal side on social issues, as he did this month. The liberals are typically in favour of progressive changes, supporting more inclusive rights, such as marriage for gay and lesbian couples, and redistributive rights, such as racially equitable distribution of public resources like affordable housing. That the Supreme Court was able to preserve President Barack Obama’s health-care reform and the Fair Housing Act (FHA) as well as legalise gay marriage is a major blow to the hard-line conservatives. It suggests that, in these cases, the tenor of U.S. social life overwhelmed the prejudices of the justices.


Obama’s health-care package (The Patient Protection and Affordable Care Act) provides government subsidies to allow some measure of health security for 17 million Americans. Obamacare, as it is called, is not a social democratic measure. It is an insurance industry measure. The government—in partnership with private health-care companies—offers health insurance to all U.S. nationals (those who opt out have to pay a fine). Obamacare is not a genuine social insurance funded publicly for U.S. residents. Nonetheless, it remains a useful option for those who are otherwise priced out of any kind of medical care.

Conservatives disliked Obamacare from the start. For them, this was a major government intrusion into the free market. Republican presidential candidates for 2016 are united in their antipathy to Obamacare. Ted Cruz said, “I would do anything, and I will continue to do anything I can, to stop the train wreck that is Obamacare.”

His colleague Rand Paul compared Obamacare to the Stamp Act of King George III, which led to the American Revolution. The comparison between King George III and Obama reveals a great deal of the Republican mindset, which continues to see Obama as a foreign ruler. The Republicans seek to build opposition by calling Obamacare a socialist policy. They went to the courts to block its implementation. In 2012, the Supreme Court upheld the legality of Obamacare. But this was not enough. New sets of challenges—mostly on technicalities—continued.

The most substantial challenge came from the Right, which argued that the federal subsidies provided to low-income Americans in States that had their own health insurance exchanges should be cut. If the government ceases these subsidies to 6.4 million Americans, the entire Obamacare system will be threatened with collapse. The point of a health insurance system is to allow coverage to everyone. This was the essence of Obamacare.

The 6-3 decision in favour of Obamacare on June 25 rattled Scalia. His dissent went directly after the Chief Justice, who voted with the liberals on this decision. It is a “wonderfully convenient” ruling, said Scalia, with “interpretive jiggery-pokery” instead of a reasoned argument. Outside the court, the Republicans decried the ruling. They had wielded the dangers of Obamacare like a red-hot poker to try and stoke a firestorm of rebellion, but the Supreme Court decision put paid to their plans.

Fair housing

The right wing has always hated the idea that the state would intervene in the housing market on behalf of the poor. The Fair Housing Act (FHA) of 1968 was a target of the Right since its passage into law. When the Bill came to the Congress at the time, Senator Robert Byrd, a conservative Democrat, said that the act would “constitute discrimination in reverse”. It would benefit minorities and hurt whites. Senator Allen Ellender, also a conservative Democrat, said that the Bill was “obnoxious”. Since 1968, the argument against the Act from the Right has been that it benefits minorities and hurts whites. In 2015, two challenges to the FHA came before the Supreme Court in tandem— King vs Burwell and Texas Department of Housing and Community Affairs vs Inclusive Communities Project. Both draw from the cesspool of racist ideas to argue against housing assistance for the poor.

The Texas case, on the surface, put itself forward as the defender of minority interests. The issue brought before the court was whether the government housing authorities deliberately used housing subsidies to lock minority populations into predominantly minority areas. This was a malicious lawsuit in a way because the Right is typically unconcerned with racism. But it was on this basis that it argued for the invalidation of housing subsidies to the poor. The court had previously argued that if a housing policy was race-blind but nonetheless burdened minority housing opportunities more than white housing opportunities, it was still acceptable. This is called “disparate impact”.

If the court had done away with this policy, it would have directly impacted a host of laws (including the landmark Civil Rights Act of 1964). Justice Kennedy, who wrote the majority opinion, warned against the use of race in public policy: “We must remain wary of policies that reduce homeowners to nothing more than their race.” This suggests that the court ruled in this case to protect the FHA but did so for less than progressive reasons. It suggested that the remedy for racism should not draw upon race, leaving policymakers with an unclear road ahead. The Right responded eccentrically. Justice Clarence Thomas’ dissent pointed out that in many countries, minorities—such as the Chinese in Malaysia and the Greeks in the Ottoman Empire—became dominant in the economy. He also noted—as if this were germane—that over 70 per cent of the players in the National Basketball League were black. The assumption was that race-aware policies or even policies with differential racial impacts were not necessary in the world. Fortunately, Thomas was in the minority.

Gay marriage

Over the past decade, one of the areas of struggle for equal rights in the U.S. has been the right of gays and lesbians to marry. The issue here was not so much marriage itself but the immense advantages given by the state and by corporate policy to married couples—advantages of work-related benefits, health care, child care, hospital- visitation rights and tax benefits. By not allowing gays and lesbians state-sanctioned marriage, the state prevented them from full participation in basic advantages. As a political goal, universal marriage rights raised broader questions in the LGBTQ movement. Many lesbian and gay activists questioned the centrality of marriage to the movement since it validates conservative ideals of social organisation such as monogamous couples and two-parent families. As a symbol of acceptance, however, expanding the legal right to marry to gays and lesbians now signifies a long-fought welcome into mainstream U.S. social, economic and political life. The gateway for this social acceptance had become marriage equality.

In 2004, the State of Massachusetts allowed same-sex marriage. It opened the door for the marriage equality movement. The right wing responded swiftly and harshly. Fourteen States adopted anti-gay marriage amendments—Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas. This is the heartland of the Republican Party. Its evangelical Christian base and old-fashioned traditionalists had long capitalised on demonising gays and lesbians in elections. They refused to accept the new direction even when the lower courts struck down amendment after amendment. The Supreme Court’s decision invalidates all bans on same-sex marriage. Anthony Kennedy’s judgment noted that gays and lesbians now had “equal dignity in the eyes of the law. The Constitution grants them that right.” Obama called it a “victory for America”.

Right-wing presidential candidate Mike Huckabee suggested that the Supreme Court’s decision was “an out of control act of unconstitutional judicial tyranny”. A Texas pastor said he would immolate himself in protest. Texas Governor Greg Abbott said the Supreme Court had “imposed on the entire country their personal views on an issue that the Constitution and the court’s previous decisions reserve to the people of the States”.

In the larger scheme of things, these three judgments are not radical in any way. They do not address the country’s deeper problems such as acute joblessness and a frayed social fabric. But all these judgments are led by long-held popular opinion for racial and sexual inclusion in basic rights.

As the next election cycle begins, the Right has lost on what have been powerful wedge issues in the past. It suggests that even the Supreme Court—the bastion of the Right (who enjoy intellectual leadership of the court)—had to face the public’s slow drift away from the narrow confines of prejudice towards a more liberal view of things.