A Supreme finish in D.C.


“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

— Justice Anthony Kennedy

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. But do not celebrate the Constitution. It had nothing to do with it.”

— Chief Justice John Roberts

The United States Supreme Court’s decisions on same-sex marriage and the Affordable Care Act understandably garnered most of the attention in the press this past week, but the court’s final decisions were filled with matters that have broad impact.

Affordable Care Act (aka: Obamacare): The week began with a 6-3 vote to uphold the tax credits available to individual policy holders even if those policy holders had obtained their insurance through a federal exchange rather than a state exchange. The case centered around the meaning of the words “an Exchange established by the State” in section 36B. The majority determined that it was the intention of Congress to provide those tax credits to policy holders regardless of whether the policy was issued from a state exchange or one run by the federal government. The dissenters would have read the plain language of the bill to mean exactly what it said, that the credits were available only if the policy came through a state exchange.

Obergefell v. Hodges: In a decision that was, as most expected, 5-4, the court ruled that the 14th Amendment prohibits sexual orientation discrimination in the issuance of marriage licenses. The decision, which was met with four vehement dissents, upheld several lower court rulings and struck down the bans against same-sex marriage in the 14 states that still had them, including Ohio. The majority specifically noted exclusions for religious organizations that are opposed to performing same-sex marriage ceremonies.

Texas Department of Housing v. Inclusive Communities Project: By a vote of 5-4, the court held that claims of discrimination under the Fair Housing Act can be based on a showing that a housing policy has a disparate impact rather than a claim that there was a specific discriminatory intent. This is the first case in which the court has expanded the Fair Housing Act to disparate impact claims, although the court placed limitations on those claims in its decision. The dissenters noted that the FHA had been interpreted for 45 years to cover only disparate intent cases and that nothing had changed to generate a different result now.

Johnson v. United States: In this 8-1 decision, the majority struck down the residual clause of the Armed Career Criminal Act finding that it was unconstitutionally vague and the average citizen could not know what conduct it prohibited. Justices Kennedy and Thomas concurred in the judgment but under a different theory of the case.

Michigan v. EPA: In another 5-4 decision, the court ruled that it was unreasonable for the Environmental Protection Agency to disregard considerations of cost when drafting power plant regulations. The majority determined that the phrase “appropriate and necessary” when viewed against established administrative law required the EPA to consider cost as one of the factors in the power plant regulations. The court concluded that it would be up to the agency to determine how to account for cost in those regulatory procedures.

Arizona Legislature v. Arizona Redistricting Commission: Again, by a vote of 5-4 the court upheld an action of the citizens of Arizona to amend their state constitution to remove the redistricting power from their legislature and give it to an independent commission in an attempt to end gerrymandering. The Arizona legislature sued, claiming that the U.S. Constitution requires that state legislatures make decisions on the “times, places and manners for holding elections.” The majority noted that dictionaries at the time of the writing of the Constitution defined legislature as “the power that makes laws” and so that definition could apply to the voters of Arizona as well. The dissenters weren’t convinced of that argument at all and again would have imposed the plain language of the word to mean only elective bodies.

Glossip v. Gross: In yet another 5-4 decision, the court upheld the use of a three-drug protocol in carrying out the death penalty. The majority concluded that the inmates challenging the drug protocol could not show that there was a better or more humane method, nor could they show that this method was highly likely to violate the prohibition against cruel and unusual punishment. The dissents were most notable for the fact that Justices Breyer and Ginsberg became the first justices in some time to state an all-out opposition to the death penalty. The case has direct implications for Ohio.

Throughout this term of the court, there had been very few 5-4 or 6-3 decisions but, as is often the case, the most contentious decisions were issued in the final days of the term, in part because those cases were argued later and in part because the simple act of writing, exchanging and re-writing multiple opinions in a case delays the issuance of a decision. Next year’s term already has several cases that touch on hot-button social and political issues.