On deferring to Congress whenever it agrees with you | Bleader

On deferring to Congress whenever it agrees with you


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Antonin Scalia
  • AP Photo/J. Scott Applewhite
  • Antonin Scalia
Antonin Scalia has been catching it for the blithe inconsistency of the reasoning he exhibited last week in two high-profile Supreme Court rulings. Dissenting from the court's 5-4 decision to strike down the federal Defense of Marriage Act, Scalia accused the majority of "legalistic argle-bargle," which Eric Zorn would explain is a kissing cousin to "crinkie-winkie," and which I bet Scalia used for the satisfaction of knowing Justice Anthony Kennedy, who wrote the majority opinion, would have to look it up to find out how insulted he should feel.

What Congress has decreed let no judge put asunder. "We have no power under the Constitution to invalidate this democratically adopted legislation," Scalia argued. Doing so "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 everywhere 'primary' in its role."

But the day before Scalia had been part of the 5-4 majority gutting the Voting Rights Act, which protected the right to vote of blacks in southern states. Originally passed in 1965, the VRA was most recently renewed in 2006, by the lopsided margins of 390 to 33 in the House and 98 to 0 in the Senate.

My guess is Scalia's inconsistency is largely attributable to his viscera, which are made queasier by some things than others. Both Scalia and Kennedy looked back to Lawrence v. Texas in 2003, but whereas Kennedy said that ruling shielded "private, consensual sexual intimacy between two adult persons of the same sex," Scalia recalled that it declared "a constitutional right to homosexual sodomy." He'd warned us in 2003 that there'd be consequences. Today it was federal law being overturned; tomorrow, Scalia predicted, it would be every prohibition of same-sex marriage at the state level.

But his inconsistency is not the point. Most Americans paying attention wanted the court to be inconsistent. I know at least one libertarian who thinks the court got it right both times, but a lot of people wanted the court to overturn the Defense of Marriage Act and uphold the Voting Rights Act, and a lot wanted just the opposite. The point is that deferring to Congress is like deferring to Scripture: when you agree with it it's easy to do; when you don't it's because the text is archaic and obscure and then it's easy not to do. Founding Fathers wrote our Constitution; pols wrote our laws. Almost every act of Congress is the act of a past Congress; and there is something disingenuous about saying Congress has spoken when the Congress that spoke is a Congress largely composed of members who have since retired, been defeated, died, or gotten rich on K Street, and the sitting Congress, if it spoke, would probably say something very different.

Who is around from the Congress of 1965 that first passed the Voting Rights Act? Well, you say, most of the Congress that renewed the act seven years ago is still in place. But it's one thing to sustain a long-standing piece of civil rights legislation when you know you'll be tarred and feathered if you don't; it's another thing to resurrect it once it's dead. The reaction of most liberal commentators was that the court just struck the VRA pretty much of a death blow.

Roberts's majority opinion said the law had done America a world of good—"but history did not end in 1965." Since then, voting tests have been abolished, racial disparities in registration and election-day turnout have vanished, and "African-Americans attained political office in record numbers." Yet the Voting Rights Act, even after being reauthorized in 2006, "ignores these developments."

"Voting discrimination still exists; no one doubts that," wrote Roberts. But he said Section 4 of the VRA, the section that sets the formula that determines which jurisdictions must ask the Justice Department for permission to make changes in their election laws, is obsolete—it's up to Congress to bring it up to date.

And maybe Congress will. And since this really isn't the same America some of us lived in back in 1965, maybe Congress should have to. Nevertheless, a lot of commentators regard what the Supreme Court just did to the Voting Rights Act as tragedy and perfidy. "Roberts knows that today's Republican Party is far more hostile to any cooperation with Democrats, and that a legislative fix for Section 4 is unlikely," wrote Adam Serwer, at msnbc.com. Instead of killing the law, "he simply anesthetized a terminally ill patient and left her in the operating room, waiting for a surgeon who will never arrive."

All this goes to show the power of the Supreme Court. It's the power either to say "We don't like this law but it's up to Congress to rewrite it" (knowing Congress is incapable of it), or to say "We strike down this law and it's up to Congress to rewrite it (knowing Congress is incapable of it). It's very easy for an ideologically divided court to wind up on either side of this thin line—but what a difference!

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