Tuesday, July 02, 2013

The Missing Combination of Restraint and Originalism in Shelby County and Windsor

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.


Unknown said...

Any thoughts on how the now retired Supreme Court Justices would vote if they had Windsor and Shelby County in front of them? Specifically, it seems plausible that O'Connor would vote exactly the way the other Justices rejected, i.e. uphold VRA and DOMA? In Lawrence v. Texas she clearly indicated that the government has a legitimate interest in protecting the traditional definition of marriage.

David Ricardo said...

I think some of the reconciliation between the position on VRA and DOMA by the conservative block can be explained by the differentiation between direct Constitutional rights and Equal Protection rights. Direct Constitutional rights refer to rights specifically granted in the Constitution. For example the right to practice one’s religion free of government interference is a direct Constitutional right.

Equal Protection rights on the other hand are indirect Constitutional rights. These are rights that one has not because they are granted in the Constitution, but because violation of those rights would violate the promise of Equal Protection under the law.

The Conservative block, particularly Scalia and Thomas, as I read their opinions regard the prohibition of discrimination against the white majority as a direct Constitutional right. Therefore VRA is Unconstitutional on its face, and in fact any racial preference is prima facie Unconstitutional. One interesting thing will be the upcoming decision on Michigan’s state Constitutional amendment which prohibits the use of any racial data in college admissions. It is hard to see how this will not be upheld, but that is a discussion for another time.

With respect to the rights of gay and lesbian couples to marry, the Conservatives do not believe this is a direct Constitutional right, and I and others agree. Having reached that conclusion the Conservative block stops. Notice how they frame their arguments in terms of whether or not there is a Constitutional right to same sex marriage. Justice Roberts celebrates the fact that the majority in Windsor did not find a direct Constitutional right to same sex marriage. Conservatives not only disagree with the Equal Protection argument, they ignore it altogether.

But the trial case in Perry and the rulings in Windsor established that there is no state interest, no justifiable reason, no rational basis for treating same sex couples different from opposite sex couples with respect to marriage. And so these decisions rest upon the Equal Protection right in the Constitution, and consequently same sex marriage is Constitutional because to deny it is to violate the Equal Protection doctrine.

Justice Scalia in particular hates this Equal Protection doctrine, because it allows the Court to define all sorts of Constitutional rights, rights which are not directly contained in the Constitution. The big one of course is the right to abortion, but also in Justice Scalia targets are the right to contraceptives, the right to simply engage in homosexual activities and a whole lot of other rights the Court has recognized even though they are not mentioned by the Constitution.

But that of course is the brilliance and the genius of the American Constitution. And Justice Scalia may or may not realize that in fact his stance on prohibition against discrimination of the majority rests on indirect Constitutional rights, as Mr. Dorf has illustrated in this post. History will not speak kindly of Justice Scalia, once it understands him.

William Eshelman said...

The "Supreme Court" is a collective noun, just as "IBM" is. It therefore properly is an "it." See: http://www.chompchomp.com/terms/collectivenoun.htm

Unknown said...