Oy Vey!

Where to start?  (After the epic face palms, that is.)

In no particular order:

• Let’s not have any more talk from the Left about how we have a “conservative” or “reactionary” Supreme Court.  Also, let’s note that the author of the majority opinion in the same sex-marriage case, Anthony Kennedy, also wrote the Citizens United opinion that some on the Left have compared to Dred Scott.  (Seriously.) It is possible to work out the consistency between Kennedy’s views on both cases (more on this in a moment). But for the moment: yesterday MoveOn.org tweeted that since the Court had spoken on Obamacare, we should now “move on” from the issue. I assume they’ll say the same about Citizens United (which, after all, was only one of several in a series of decisions striking down government regulation of political speech).

• The only thing conservatives have gotten from the Court this term is striking down an archaic raisin cartel. As Paul pointed out yesterday, lost in the uproar over the Obamacare case yesterday was the ruling on extending the dubious “disparate impact” doctrine to housing, which is going to be used for all kinds of mischief and fresh extortions in the nation’s housing markets and real estate industry.

There is an environmental law case pending for announcement on Monday that could be a significant setback for the Obama Administration’s plan to regulate greenhouse gas emissions through the EPA and the Clean Air Act, and there have been some curious hints about which way the Court (or more particularly Roberts) may be leaning, based on a reference to the Utility Air case in King v. Burwell yesterday. It is very unusual for an opinion to reference another case that hasn’t been formally decided and announced yet. But given the way things are going, who expects anything less than a clean sweep for the Left on Monday?

I think it is possible that Roberts might have switched his vote in King v. Burwell as he apparently did in the first Obamacare case, after finding that Kennedy was siding the Court’s liberal block, so that he could write the opinion rather than let Kennedy or one of the liberals do a more expansive opinion that did even more collateral damage. (Aficionados of the Chevron Doctrine will understand what this is about.) If Utility Air does somehow come out the right way on Monday, we’ll have something to talk about.

• I’m waiting for this headline: “On Same-Sex Marriage, Supreme Court Sides with the Koch Brothers (and Dick Cheney).” Heh. Actually, turns out there is one, from Andrew Stiles at the Free Beacon, who writes, “The arc of history is long, but it bends toward the Koch brothers.” Heh again.

• I remember when the issue of same-sex marriage first started percolating in the late 1990s.  The sage Irving Kristol harrumphed, “”Let ‘em have it. They won’t like it.” A variation, perhaps, on how gays should now suffer all of the agonies of marriage that straight people do. Though I expect the matrimonial humor may be better. Heh. Emily Esfahani Smith has a nice bit on this in Politico:

Ask any husband and wife and they’ll admit that marriage is hard—but social science is beginning to discover that part of the challenge of marriage stems from the fact that most couples choose to marry a member of the opposite gender. Mixing a man and a woman in a marriage, it turns out, makes a union harder.

Nicely done, Emily. The solution is obvious: make same-sex marriage mandatory! Seriously, though: the social scientist in me (there is one, hiding in deep cover—don’t tell anybody) will be interested to see the data on same sex marriages in 20 years’ time.

• You can’t say we didn’t see this coming. Justice Kennedy grounds his opinion in the “liberty interest” of individuals to happiness. Kennedy is the author of one of the strangest single statements in the entire history of Supreme Court opinions, in the 1992 abortion case Planned Parenthood v. Casey.  There Kennedy defined “liberty” as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is a perfect expression of post-modernist nihilism. But never mind metaphysics. It’s one thing to say equal protection doctrine invalidates laws restricting marriage to the opposite sex, and quite another to ground the right in a fundamental liberty interest, for it is hard to make out any limiting principle to its application. What, according to Justice Kennedy’s principle, would bar the revival of polygamy?  For more, see David Bernstein, who traces out how Kennedy’s dewy-eyed jurisprudence makes a hash out of both equal protection and due process law.

• Let’s not forget Barack Obama’s position on marriage from not all that long ago (and Hillary Clinton, too).  Funny how agreeing with Obama and Hillary just a few years ago now gets you marked out as a vile bigot.

• Thank goodness for The Onion:

Supreme Court Rules In Favor Of Most Buck-Wild Pride Parade Nation’s Ever Seen

Though this Onion piece from a couple years ago also seems likely to prove accurate:

Scalia, Thomas, Roberts, Alito Suddenly Realize They Will Be Villains In Oscar-Winning Movie One Day

Who can doubt that such a script is already half-written in Hollywood? To which I’ll only add that if anyone ever makes a sequel to The Princess Bride, the villain will need to be Dread Chief Justice Roberts.

• Speaking of OyVey!, the Vatican formally recognized a Palestinian state today. Scott—over to you.