John Roberts, in his now infamous second decision to re-write SCOTUScare (I defer to the dissents and note that this is probably a more accurate name at this point) to save it from legislative ineptitude has given the Right the weapon needed to fight in the judicial wars that have now been unleashed thanks to a congress that would rather hide behind the skirts of the courts. Roberts wrote that the apparent meaning of the text could not be the real meaning of the text because congress couldn’t have meant to weaken markets, which would be the result of not applying subsidies in states where there was no state exchange. Essentially what was important was the intent of congress in writing the law, and that intent was entirely determined by the court, regardless of actual statements made at the time of the law being passed.
This is essentially a nuclear bomb being dropped onto courts. When the words of the law don’t mean what they look like they mean, because they must mean whatever the court determines to be in the best interests of the economy or society, then the law becomes whatever the judge thinks it should mean at the time he makes his decision. But, this sword can cut both ways. Why can’t a state judge rule that what this ruling means is in fact the latest ruling from the Supreme Court means that states don’t have to recognize homosexual marriages from other states? After all, the reasoning could be that the Supreme Court must have intended to strengthen the federalist system of the United States, because they surely could not have been intending to weaken that system as it was set up by the Constitution. Thus when the courts say that states must recognize homosexual marriages what they must really mean is that states that already recognize homosexual marriages must in fact recognize homosexual marriages coming from other states.
It doesn’t matter that the Supreme Court sided with the plaintiff, and it doesn’t matter what the clear meaning of the court’s decision is, what matters is what the court “must have meant” based on the “intent” of the court. After all, if legislative language can be interpreted in this way, why can’t legal language be interpreted in the same way? The historical context of the decision doesn’t matter, just as the actual words of those who wrote Obamacare didn’t matter when the SCOTUS determined what congress’ intent must have been when the law was written. Who cares who the court sided with, after all, such minutia is only details, not the all important “intent,” which is what really matters.
I understand we’re conservative, we’re not liberal. We want to hold to the plain meaning of words and to give respect to the decisions of the courts. But, when your opponent changes the rules in the middle of the game, you can’t keep playing by the old rules any more. If we’re willing to use their own tactics against them, and allow that what’s good for the goose is good for the gander, then perhaps we can actually accomplish something. Once we illustrate the end result of the idiocy of allowing that words don’t mean what they mean, and that feelings trump the clearly written words of the law and the Constitution, then perhaps we can restore sanity by having judges and legislatures that will actually self censor, as they will find it is the only way to actually achieve anything.
Allowing that words can have double meanings, and mean whatever we “need” them to mean at the time, allows us to fight on the same ground as our enemy. I’m not arguing this because this is the way things should be, but because this is the way things are. If we ignore the reality of the battlefield, then we have only ourselves to blame when our enemy wins. This is war, it is a war between worldviews. Liberals understand this, they demonize conservatives because they get that they are at war, but we act like this is merely a dispute amongst colleagues. Only when we fight using our entire arsenal will we have a chance at actually winning.
In all reality, courts will not do this. Conservatives respect the law too much, and we wouldn’t allow such behavior from unelected judges, and liberals like the results too much and wouldn’t undo the work of their own side. Unfortunately, the only real hope to winning this is from the legislative side, repealing the law, but our gutless wonders in congress will never do such a thing. And this is why things will continue on as they are: because we aren’t willing to show people the end result of the idiocy that liberal positions require. There is a poem that describes our times well: “The best lack all conviction, while the worst are full of passionate intensity.”