Viewpoint: The Emptiness of Supreme Court Rhetoric

This week’s decisions highlight the politics of law

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Journalists stake out positions early in the morning to report on decisions at the U.S. Supreme Court in Washington, June 26, 2013.

It’s been a bad week for people who believe that Supreme Court decision making is a product of disinterested attempts to interpret pre-existing legal rules, as opposed to the (mostly unconscious) pursuit of, to paraphrase Clausewitz on war, politics by other means.

Compare the majority and dissenting opinions in Shelby County v. Holder, the Voting Rights Act case which gutted the most crucial provision of perhaps the most important civil rights statute ever enacted by Congress, with those in U.S. v. Windsor, the case which yesterday found part of another federal  statute, the Defense of Marriage Act, unconstitutional.

In Shelby County, Chief Justice Roberts authored an almost comically bad opinion: one which essentially invents a vague new constitutional doctrine of “equal sovereignty,” which supposedly requires the federal government to treat states “equally” (A moment’s thought should make clear that almost all federal legislation will not treat states equally, if “equally” means “in a way that affects all states in the same fashion.”)

(MORE: Change in American Society: Rolling Back DOMA and the Voting Rights Act)

Worse yet, Roberts doesn’t bother to specify just where in the Constitution he’s finding this mysterious principle – which is all the more remarkable, given that he is overturning a statute that Congress enacted under the power given to it explicitly by the 15th amendment.

Justice Ginsburg’s dissent rips apart the shoddy structure of the majority’s argument, which almost without exaggeration can be rephrased as “Section Four of the Voting Rights Act was constitutional when racism was a serious problem in America, but now it isn’t, so we think the statute should be updated to make it fairer to states that were once terribly racist, but aren’t any longer.”

This is, as the dissenting justices emphasize, nothing more than the Court choosing to substitute its policy preferences for those of Congress, in a situation where the Constitution was amended specifically to give Congress the power to craft and enact this type of statute.

Yet twenty-four hours later, the four dissenters in Shelby County join Justice Kennedy (who was in the majority in that case) to do something very similar in Windsor. Kennedy’s opinion, much like Roberts,’ is notably vague on just what part of the Constitution requires the Court to find parts of DOMA unconstitutional.

(VIDEO: The Changing Views of Liberal Politicians on DOMA)

He, too, invokes the idea of equality, but fails to explain why moral disapproval of same sex sexual relations is an insufficient legal basis for Congress choosing to treat traditional marriage and gay marriage unequally. (The currently fashionable idea that moral disapproval is not a sufficient basis for legislation is frankly idiotic: all laws disfavoring certain conduct are based on moral disapproval, if one defines “morality” in anything like a coherent way).

The most depressingly amusing – or amusingly depressing – failure to perceive that the majority and dissenting opinions in Shelby County and Windsor are largely mirror images of each other is provided by Justice Scalia’s enraged dissent in the latter case, which without a hint of irony characterizes the majority’s opinion as “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 everywhere “primary” in its role.

These words were authored by someone who the previous day joined in trashing the central provision of one of the most important laws ever passed by Congress, on the basis of legal arguments which it would be generous to describe as flimsy.

The lawyer and sociologist David Riesman once defined “ideology” as that feature of mental life which causes a man to habitually believe his own propaganda. Nowhere is the blinding effect of legal ideology more evident than in cases such as these.

MORE: In Landmark Ruling, Supreme Court Strikes Down Defense Of Marriage Act


Hey author, tell me why the Supreme Court was wrong in Loving vs. Virginia, when in 1967, it declared bans on interracial marriage unconstitutional.  EVERY argument the author makes, could be applied to that case, could it not?  Could not the court have stated that because 70% of Americans morally disapproved of interracial marriages, that the court should not get involved?  Even if we go with the argument that being gay is a choice, which it is not, marrying someone of a different race is a choice.  So what's wrong with simply following the "moral disapproval of the majority then?  I'll tell you why: Because marriage is a fundamental right, as the court has ruled 14 times.  Who benefits from keeping gay people single and alone?  Nobody.


The author obviously hasn't read the opinion, nor understood the definition of "Strict Scrutiny."  Strict scrutiny means that laws which demonstrate the intent to lesson the status or harm a "suspect class" are presumed unconstitutional.  Gay people are a "suspect class," because they:

1. Have a history of discrimination(DADT, fired for being gay, many laws passed to lesson their status or dignity.)

2. Are defined by an immutable characteristic.(All mainstream science shows you don't choose to be gay.)

3. Can contribute equally to society in every relevant way.

4. Lack sufficient numbers or political power on their own to remedy their own disadvantage status.

One need only read the legislative record from congress when DOMA was passed, to see that it designed merely to express "moral disapproval of homosexuality."  It does not accomplish any of the goals stated by today's advocates. (responsible childrearing, the health of "traditional marriage," etc. Besides which, we don't typically withhold rights until a minority proves there are no adverse effects of bestowing them.  We treat everybody equally, until there is a good reason not to.  I hope Time takes the "time" to find authors who at least have a basic understanding of Constitutional Law.


Well, the SCOTUS was so correct in it's ruling to gut the Voting Rights Act, because everything is just peachy dandy, right? States like TX and NC (probably more) have ALREADY moved to restrict voting. Of course, that was the point wasn't it? Anytime you have Scalia and Thomas hanging out with the Tea Party and Scalia's wife actually having run a Tea Party organization, this ruling shouldn't be a surprise to anyone. Their goal is to help Republicans. DOMA on the other hand will not HURT Republicans at the polls. Gutting VRA (TeaRepubSCOTUS hopes) will keep enough minorities away from the polls to HELP Republicans. But we shall see if their little plan works. Voting restrictions backfired on them in 2012.


The voting decision was to only help the failing Republican party.  All the judges knew the decision well help the Republican party slow down minorities from voting so much.  Its also comical to hear a so called smartest person in the country base their decision on an idea that relies on only seeing it from a black or white perspective and not being able to see the gray area.  single dimensional thinking instead of multi dimensional thinking.


When the case of Jeff Olson , the man facing 13 years in prison for writing slogans on bank walls during Occupy Wall Street, reaches the Supreme Court, we will see how far these political hacks posing as judges are willing go.


I read both opinions, and you're spot on correct.  The sad thing is that these rulings leave an empty legacy -- the opinions give no guidance to politicians or lower courts because the opinions together are simply legally incoherent. 


Totally agree. I may like one opinion and dislike the other. But it is playing politics.