By Mike Dorf
In the wake of last week's rulings in Shelby County and Windsor, various commentators have noted that the Supreme Court rejected protection for African Americans, while it offered protection for gays and lesbians. For example, Michael Lerner offers his take here. He offers some important insights but of course, the framing is a bit odd. The Supreme Court is a they, not an it. Four Justices--Roberts, Scalia, Thomas, and Alito--said no to both African Americans and LGBT Americans. Four Justices--Ginsburg, Breyer, Sotomayor, and Kagan--said yes to both. And exactly one Justice--Kennedy--did what Lerner analyzes in his essay: said yes to LGBT Americans but no to African Americans.
Can a coherent argument be made for each of those three juxtapositions? In light of the different contexts of the respective cases, I think so, but here I simply want to note that the various configurations occupy three of the four possible positions in the 2x2 matrix that we would have by listing the various possibilities. One position is taken by no Justice: Yes to African Americans and no to LGBT Americans. The omission of that position is revealing for two reasons.
First, the missing position would have been the one position favored by judicial restraint. The four most conservative Justices wanted to strike down (part of) the Voting Rights Act (VRA) but to uphold the Defense of Marriage Act (DOMA); the four most liberal Justices wanted to uphold the VRA but to strike down (part of) DOMA; and the "swing" Justice voted to strike down (the relevant parts of) both statutes. No one voted to uphold both statutes on grounds of judicial restraint, deference to Congress, or any other reason.
Second, the missing position would have been most consistent with the original understanding. The Reconstruction Congress that proposed the Fifteenth Amendment made the prohbition on racial discrimination with respect to voting self-executing but, as with the Thirteenth and Fourteenth Amendments, gave to Congress itself the power to enforce the substantive provisions. The idea that the Supreme Court could invalidate a measure like the VRA's coverage formula under a non-deferential standard of review would have struck the framers of the Fifteenth Amendment as passing strange--especially in a case, like Shelby County, in which the protected voters are African American, the intended beneificiaries of the Reconstruction Amendments. Meanwhile, the framers and ratifiers of the Fourteenth Amendment certainly would have found nothing impermissible about the federal government defining marriage as straight marriage. And that's to say nothing of the framers and ratifiers of the Fifth Amendment, which was the actual provision in play in Windsor.
To be clear, I'm not saying that the omitted option of upholding both the VRA and DOMA would have been the best way to resolve the two cases. I'm not an originalist and I think that deference to Congress is not always warranted. But various Justices, and especially conservative Justices, periodically profess fealty to originalism and judicial restraint. And yet no Justice found the combined pull of judicial restraint and original understanding sufficient to overcome his or her ideological druthers.
N.B. I am grateful to my friend (and long-ago debate partner) Ben Alpers for a Facebook post that alerted me to the Lerner article and made the observation that Lerner had built his entire argument about "the Court" based on a position taken only by Justice Kennedy.