Davis Merritt: Will the GOP reflect Roberts’ tone or Scalia’s?

OK, folks, settle down, exhale. The U.S. Supreme Court’s two bombshells last week have burst and the vibrations remain after a weekend of either celebration or frustration, depending upon one’s political and philosophical orientation.

Now we must begin dealing with the implications of the court recognizing gay marriage and institutionalizing the Affordable Care Act. Though neither issue was resolved by those decisions, our tasks as a nation are now reset and the parameters of our debates narrowed.

The core question is whether we have the attention span and political maturity to stay involved, or will leave the remaining decisions in the hands of the people and institutions with the loudest voices financed by the biggest bank accounts.

Dealing with the fallout from the ACA decision will be the simpler of the two tasks, just as deciding King v. Burwell was a much simpler job for the court. The case was more a lawyer-contrived political attack than a plea to right an alleged wrong, and no constitutional questions were involved.

So with the ACA alive and (pretty) well at 5 years old, both parties should focus on perfecting it. The necessary first step: Everybody – including journalists – stop calling it “Obamacare,” the derisive tag invented by Republican opponents. Poetically, every usage now reinforces the very legacy they wanted to deny a president they despise. The sooner that contrivance (not appearing in the 47 pages of opinions) passes from national consciousness, the sooner meaningful work can start.

The second step: Recognize that some parts of it are working well.

The third: Realize that keeping the “good parts” – such as no pre-existing conditions or lifetime limits – but removing the “bad” mandate is simply not feasible. A mandate is the oxygen supply of any market-based health insurance plan.

Accepting and implementing the 5-4 gay marriage decision will be a much longer, rockier trip.

The dissenting justices argued – some civilly, some not so much – that the court was concocting a “right” that does not exist in the Constitution, improperly and extrajudicially short-circuiting the ongoing democratic processes that in recent years led to 37 states recognizing gay marriages.

Chief Justice John Roberts’ dissent was sharply worded yet well-reasoned, arguing that the majority justices crossed a line that judges must not cross, pre-emptively imposing on the entire country their version of what state laws should say.

That’s what opponents of the 1954 Brown v. Board of Education decision claimed when the court declared that segregated public schools were inherently unequal and, therefore, unconstitutional and had to end immediately.

The unanimous Brown court, like the present majority, rejected gradualism: Justice delayed is justice denied. But implementing Brown took two decades of strife, dozens of lawsuits, and even troops in the streets.

It will take at least as much time to resolve the residual issues of the marriage case, such as how to reconcile the announced law with the fervently held belief of millions that homosexuality is a choice forbidden by their god.

The true test of the viability of our democratic process will be whether our coming debates reflect the firm, measured leadership of Roberts’ dissent or the darker, bitter tone of Justice Antonin Scalia’s – sarcastic, cynical and contemptuous of those holding opposing views, including his fellow justices.

No matter your position on the issue, read them both and decide which tone would serve us best in the coming debates.

This story was originally published June 29, 2015 at 7:04 PM with the headline "Davis Merritt: Will the GOP reflect Roberts’ tone or Scalia’s?."