Claremont Institute

Unmoored:

The Court Subverts Our Democracy


King v. Burwell begins at: 2:39
Obergefell v. Hodges begins at: 22:20

In this important tele-town hall, Dr. John C. Eastman, founding director of the Claremont Institute's Center for Constitutional Jurisprudence, spotlights two of the most disturbing decisions the Court handed down this term: King v. Burwell and Obergefell v. Hodges.

Though the cases address vastly different areas of policy—federal tax credits for health insurance and state marriage laws—both decisions illustrate a disturbing tendency of the Roberts Court. In 1861, President Lincoln noted that if the Supreme Court is allowed to decide “vital questions affecting the whole people” using ordinary litigation, “the people will have ceased to be their own rulers… resign[ing] their Government into the hands of [the Supreme Court].” The majority opinions in King and Obergefell show that Lincoln’s worry is just as relevant today as it was 150 years ago.

The policy questions in each case are interesting in their own right. In King v. Burwell, Justice Roberts handed another victory to the Affordable Care Act, holding that the IRS operated within its authority to extend the tax credits given to those purchasing coverage through state health care exchanges to those buying coverage through the Federal Exchanges.

Justice Kennedy, writing for the majority in Obergefell v. Hodges, answered a seemingly simple question—may states deny marriage licenses to same sex couples?—while leaving many more question unanswered. What standard of review must the lower courts use in considering similar cases? How does this newly created right interact with religious liberty? How far does this newly created right stretch—does it include marriages of more than two individuals, or individuals under the age of majority?

Dr. Eastman places these legal and policy issues in their wider Constitutional context, exploring how they relate to the separation of powers, federalism, and the basic structure of our democratic republic.