This week at the United States Supreme Court, an historic week by any measure in the long history of the institution, a week that capped a Court term as openly divisive and derisive as any in recent memory, one of the justices made the following observation about one of the most important cases of the past decade. The justice wrote:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.>
Now, I ask you (and please don't peek at the answer), which justice wrote this? Was it Justice Ruth Bader Ginsburg in her dissent in Shelby County v. Alabama, the case in which the Court, by a 5-4 vote, invalidated the heart of the Voting Rights Act, one of the most successful federal laws in the nation's history? Was it Justice Antonin Scalia in his dissent in United States v. Windsor, the case in which the Court, by a 5-4 vote, invalidated the heart of the Defense of Marriage Act, a piece of legislation so popular at the time of its passage that lawmakers were falling over themselves to endorse it?
You can't tell, right? Of course you can't. Because that passage could easily fit well into both dissents. (As it turns out those blunt words belong to Justice Scalia, the eternal Court scold, at the start of his predictable dissent in Windsor.) Think I am exaggerating? Read both of those dissents again and then tell me I am wrong. And therein lies the vastness of the gulf that exists today between the reputation of the highest court in the nation and the people in whose name the justices are supposed to serve. On weeks like this, in the wake of terms like this, it seems as though there is no rhyme or reason to the rationale of the decisions that are handed down.
Four of the conservative justices who were so eager to assert judicial power to strike down federal legislation on voting rights were loath to assert judicial power to strike down federal legislation defining marriage. Four of the liberal justices who were so willing to defer to legislative authority over voting rights were loath to do so when it came to restrictions on same-sex marriage. Only Justice Anthony Kennedy, the swing vote, was consistent. He supplied the fifth vote in each case by voting to strike down both of the federal statutes that were in play. And for his trouble he is now the object of scorn from all sides of the legal and political spectrum. Despised by the right for Windsor. Decried by the left for Shelby County.
Naturally enough, there was a rush by the cognescenti to explain the evident contradictions in Shelby County and Windsor. In Shelby County, some said, it was the Court's conservatives who were principled, because Sections 4 and 5 of the Voting Rights Act impose extraordinary restrictions on some jurisdictions and not others. Congress must justify such inequality in ways the Court normally would not require. No, other bright lights argued, it was the Court's liberals who were principled, because the 14th and 15th Amendments gave Congress broad authority to protect minority voters. In such circumstances, the Court should have been most deferential to legislative authority.
In the Windsor case that was all turned around. It was the Court's liberals who were principled, scholars contended, because Section 3 of the Defense of Marriage Act so patently and intentionally discriminated against same-sex couples. Such discrimination necessarily vitiated Congress's authority under the due process and equal protection clauses of the Constitution. No, said others, it was the Court's conservatives who were principled, because Congress has traditionally defined the tradition of marriage even as it left core marital decisions to the states. In such circumstances, there was no need for the Court to be anything but deferential to the will of the legislators.