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.
The truth is that nobody has a compelling explanation to mesh both rulings, because there is no compelling explanation. At least there is no good explanation likely to convince the average person who asks simply: "Why did the same justices who struck down one federal law embrace the other and vice versa?" I couldn't answer that question Wednesday when I was asked it a dozen times. But today I will simply steer folks to Justice Scalia's dissent in Windsor. I disagree with nearly every word of it, but if it were applied as well to the majority's opinion in Shelby County I would consider it the most eloquent expression yet of the bafflement many people feel when the Court acts the way it has these past few days.
This week -- and, you could argue, this entire term-- was all about judicial power and the use of it by these justices to achieve the results they wanted. If this seems cynical to you, then prove me wrong. Tuesday's losers were
Wednesday's winners, and Wednesday's losers were Tuesday's winners,
simply because of the constitutional predilections of one man, Justice Kennedy. His centrality to the Court, and
thus to the sweep of our law, was never more evident than it
was this week. And as the extent of his power becomes more obvious in these bitterly-fought rulings, the scope of the Court's prestige as a neutral "umpire" continues to suffer.
Take just the past few weeks. In Shelby County, the Court applied a voting rights law to restrict the rights of voters. In Vance v. Ball State University and UT Southwestern Medical Center v. Nassar, the Court applied an employee discrimination law to restrict the rights of employees victimized discrimination. In Salinas v. Texas, the Court applied the Fifth Amendment's "right to remain silent" as warning that your silence may be used against you. I could go on and on. But whether this stems from ideology, as some claim, or poor legal reasoning, as others contend, is irrelevant. What's evident is that we don't have a Court we all want, the one we teach our kids about, the one whose decisions we are moved to respect on any consistent basis.
That's my takeaway, anyway, from this memorable term. I wrote earlier this week that Chief Justice Roberts, the steward of this queasy ship, wrote one of the most lamentable decisions in the Court's history in Shelby County. In light of the fact that, within 24 hours, most of the jurisdictions "covered" by the provision the Court struck had raced to implement new voting restrictions, in light of Richard A. Posner's withering scorn, I am sticking by that assertion. Last weekend, I wrote, too, that the Court was coordinating the release of its opinions to defuse the political fallout from any one ruling. In light of the dissonance this past week as fury over voting morphed into delight over marriage and vice versa, I am sticking by that stance, too.
The justices clearly need a break from one another and they will get it now. The rest of us could probably use a break from them as well. I know I could. The good news is that they'll all be back on the first Monday in October, presumably each with the goal of doing better. The bad news is that, for better or worse, we are stuck with the products of their recent labors. Great news for corporations. Terrible news for minority voters. But most of all a constant reminder that that these justices, as learned and as wise as we make them out to be, are full of the same human biases and frailties as the rest of us. Empathy on the Court today is universal -- only its targets divide the justices.
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