King and same-sex marriage

Over at Bloomberg, Harvard law professor Noah Feldman has a provocative and perceptive article linking same-sex marriage and King v. Burwell. Banking on the likelihood that the Supreme Court will find a constitutional right to gay marriage, Feldman writes:

That leaves Chief Justice John Roberts in the driver’s seat in the upcoming Obamacare case, as he was in 2012. … Roberts seems strongly committed to the idea that a court associated with his name should not come to be seen as the most activist conservative court since the 1920s and 30s. His surprising vote to save the individual mandate two years ago was an act of judicial restraint that simultaneously saved the Roberts court from opprobrium.

But if the Roberts Court (without Roberts’s vote) announces a fundamental constitutional right to marry, its liberal legacy will be so prominent that Roberts may have reason that he can kill Obamacare without tarnishing the court’s reputation too much.

Imagine that, in the space of a few days at the end of June, the court decides a landmark case in favor of gay rights and then says that the IRS can’t give subsidies to citizens of states that haven’t created their own health-insurance exchanges: What liberal critic would be able to say with a straight face that this was the most conservative activist court in history? The court would be activist, all right, but it would appear almost evenhandedly so.


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