“We’re arguing about the battles among the conservatives and when that coalition breaks and where it goes,” lamented Harvard Law School lecturer Nancy Gertner, a former federal judge. “It’s a dramatic difference from only two or three years ago.”
Leading the charge from the right in both cases Thursday was Justice Samuel Alito, who penned caustic opinions taking his colleagues to task for issuing narrow rulings that seemed to him to be aimed at defusing political tensions rather than interpreting the law.
“After receiving more than 2,500 pages of briefing and after more than a half-year of post-argument cogitation, the Court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state. Those who count on this Court to stand up for the First Amendment have every right to be disappointed—as am I,” Alito wrote in the foster-care case, notwithstanding the Catholic charity’s unanimous victory.
In the Obamacare dispute, Alito sarcastically accused the majority of repeatedly indulging in flights of legal sophistry to avoid the politically unpalatable step of striking down the landmark health care law.
“No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats,” Alito wrote. “A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”
While Alito observed the court’s traditional decorum by railing at “the majority,” there was little doubt his criticism was aimed primarily at Chief Justice John Roberts, who provided the pivotal vote to uphold Obamacare nine years ago and voted Thursday to leave the law intact by concluding that the Republican-led states seeking to overturn it lacked legal standing to sue.
In the latest Obamacare case, the chief justice left authorship of the majority opinion to the court’s longest-serving justice, Stephen Breyer, but the result was vintage Roberts: a largely-technical, 7-2 decision finding a lack of standing for the states and individuals challenging the law, while pushing aside more fundamental questions about the law’s constitutionality.
Roberts was the author of the opinion the court issued Thursday finding very narrow grounds to strike down Philadelphia’s ban on Catholic Social Services due to its policy against vetting same-sex couples for foster care.
Alito complained that Roberts’ reading of the Philadelphia ordinance and a similar state law was so Talmudic that it meant nothing in other cases and could quickly be evaded by the city through minor changes.
“This decision might as well be written on the dissolving paper sold in magic shops,” Alito wrote derisively.
Despite the obviously tense Alito-Roberts dynamic, what unfolded Thursday at the court was not simply a one-on-one grudge match. It was more like a tag-team wrestling event, with Justice Neil Gorsuch repeating much of Alito’s criticism and the court’s newest conservative justices — Amy Coney…