A Supreme sham

(Image credit: (AP Photo/Dana Verkouteren))

published 1 May 2015

We can't know yet how the Supreme Court will rule on same-sex marriage in June, but we already do know this: The decision won't be based on a dispassionate reading of the Constitution. The 5-4 (or perhaps 6-3) ruling will be a reflection of the political orientation, values, and visceral feelings of each justice; as their "questions" (actually pronouncements) showed this week, every justice except perhaps Anthony Kennedy came into this case with his or her mind made up.

Each side will present elaborate rationales to justify its views, but legal merit will not determine which side prevails. The ruling will simply represent the results of a mini-election on a court as nakedly partisan and polarized as the country itself — a court with four "blue" justices, four "red" ones, and one swing vote. "It becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means," says University of Chicago law professor Justin Driver, "and that justices are not merely politicians clad in fine robes."

It was not always thus. Until recent decades, the court's landmark decisions often came in one-sided rulings (Brown v. Board was 9-0). Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn't happened since Ronald Reagan appointed Kennedy, and it isn't likely to happen again. So let's drop any remaining pretense that the justices are impartial arbiters calling "balls and strikes" on the issues that divide us: gay marriage, ObamaCare, voter ID, campaign finance, religious freedom, et al. They call 'em as they prefer to see 'em.

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William Falk is editor-in-chief of The Week, and has held that role since the magazine's first issue in 2001. He has previously been a reporter, columnist, and editor at the Gannett Westchester Newspapers and at Newsday, where he was part of two reporting teams that won Pulitzer Prizes.