2 Cases, 2 Dissents, and a Similar Cry From the Left and Right

When can the Court stomp on the will of the people?

David Leonhardt of The New York Times very nicely summed up the partisan reactions to both Wednesday's ruling on the Defense of Marriage Act and Tuesday's on the Voting Rights Act:

Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.

— David Leonhardt (@DLeonhardt) June 26, 2013

It's interesting to think that both the Voting Rights Act and the Defense of Marriage Act were passed (and reauthorized) in Congress by large, bipartisan majorities. And dissenters in each case make a similar argument: These laws are the will of the people (or of their elected representatives), so what power do the justices have to touch that?

Justices Ruth Bader Ginsburg and Antonin Scalia don't agree on much, but they do seem to think in certain cases, this is ample reason to keep a law in place. Granted, there's a lot more nuance in the opinions and other points of support and dissent, but "it's the will of the people" is a strong argument the justices have in their tool kit, when needed.

Look at the difference 24 hours can make.

Today, Scalia railed on the point of judicial overreach, stating that the Court had no reason to take up this case other than to enforce the ideology of the Court's liberal wing.

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 leg- islation. 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.

That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where "primary" in its role.

Tuesday, Justice Ginsburg, in her dissent, stressed that the Court should have kept the Voting Rights Act intact, due in part to the scrutiny and votes it had undergone in Congress. The majority said the law reflected a now-passed era, and that preclearance is no longer needed. Ginsburg challenged the Court on whether it was up to them to decide that or Congress.

The Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress' prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute's challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from con­temporary evidence, to be working to advance the legisla­ture's legitimate objective.

Also parallel, the decisions in both cases were premised on the idea of equal justice. As it is no longer fair for some counties and districts to have to undergo federal oversight in their election affairs, it is no longer fair for the government to give benefits to heterosexual couples but deny them to homosexual ones.