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.”)
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.
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.