The Bigoted Stylings of Justice Alito

The U.S. Supreme Court’s exciting final day of the term was highlighted by its 5-4 ruling tossing most of the insidious Defense of Marriage Act onto the dustbin of constitutional history. Much of the gravity in the three separate dissents penned by conservative members of the Court — John Roberts, Antonin Scalia and Samuel Alito — was technical having to do with standing and jurisdiction rather than with the equal protection merits.

But beyond the technical issues, Alito and Scalia did take the opportunity in their dissents (pdf) to tell us how they really feel about marriage equality. Alito in particular went off the rails. Here are some excerpts from the world of equality according to Sam Alito:

It is beyond dispute that the right to interracial marriage is not deeply rooted in this Nation’s history and tradition…Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if interracial marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing interracial marriage will seriously undermine the institution of marriage… Others think that recognition of interracial marriage will fortify a now-shaky institution. At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of interracial marriage will be…The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of a different race, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of interracial marriage.

Ok, he didn’t quite write that … I changed “same-sex” to “interracial” and “a different race” where underlined. But otherwise he wrote exactly that. The Supreme Court figured out 46 years ago in Loving v. Virginia — a unanimous ruling — that in equal protection terms Alito’s kind of logic applied to interracial marriage won’t fly: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.” Polls now show most Americans believe in that sentence even with the word “racial” removed. The Alitos out there will eventually be dragged into the twenty-first century (or should I say the late 1960s).

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

The Hypocritical Stylings of Justice Scalia

Say what you will about affirmative action, voting rights, same-sex marriage, the Supreme Court as an institution … but as the Court wraps up its term with today’s final decisions, we pose the question on everyone’s mind: Is there a bigger hypocrite than Justice Antonin Scalia in all of American jurisprudence?

Scalia’s ability to twist his reasoning and his opinions to suit the outcomes he apparently prefers is legend. Not sure where he stands on waterboarding, but his inclination to torture a legal argument until it confesses his desired conclusion has been in full bloom these last two days, with the Court’s rulings on the Voting Rights Act and the Defense of Marriage Act.

Today, writing in dissent (pdf), Scalia excoriated the majority that ruled DOMA unconstitutional for elevating the Court’s judgment over the prerogative of the legislative branch. Bloviate away, Nino:

That 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.

Yet just yesterday Scalia signed on to Chief Justice Roberts’ majority opinion eviscerating an act of the people’s representatives in Congress. Roberts’ opinion complained that “Congress did not use the record it compiled” when it reauthorized the Voting Rights Act. Congress’ continued reliance on VRA’s prior preclearance formula is an act of “irrationality.” We are left “with no choice but to declare [VRA] section 4b unconstitutional” because Congress chose not to update the formula.

In the DOMA dissent today Scalia was eager to point out that the presence of any legitimate justification for a duly enacted statute removes the need for Court review. He wrote of DOMA: “There are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case.” Does anyone doubt that there were many perfectly valid rationales for Congress’ 2006 reauthorization of the Voting Rights Act? Even the Roberts majority — which Scalia signed on to — recognized that the country has made great strides because of VRA and acknowledged that there can still be a role for VRA as a whole and preclearance in particular.

When it comes to Antonin Scalia’s approach to legal reasoning, the ends don’t just justify the means; they define them. The result is quiet acquiescence in judicial activism — Congress must be stopped! — in order to rein in voting rights, but indignant horror at the evils of judicial overreach — We must defer to Congress! — when it comes to equal protection.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

SCOTUS on Voting Rights: Dueling Metaphors

The U.S. Supreme Court rendered today its highly awaited ruling on the Voting Rights Act, finding 5-4 that the Act’s preclearance mechanism is in theory acceptable but in practice unconstitutional. In an opinion (pdf) penned by Chief Justice Roberts, the five conservatives on the Court reasoned that the preclearance provision is “irrational” because it relies on a “formula based on 40-year-old facts having no logical relation to the present day.” In dissent, the Court’s liberal justices respond that there is plenty of connection between the Act’s history and the present: “second-generation barriers to minority voting rights have emerged” in the jurisdictions covered by the Act, replacing those original barriers (like poll taxes and literacy tests) that justified preclearance in the first place. This, Justice Ginsburg’s dissent argues, amounts to “powerful evidence” that preclearance “remains vital to protect minority voting rights.”

This is all important stuff, sure, but my favorite aspects of the decision and the dissent are the dueling metaphors contained within. Who has the better one? You make the call.

First a bit of background: When Congress last reauthorized the Voting Rights Act in 2006, it kept in place without modification the existing formula for determining which states and jurisdictions remain subject to the requirement that changes in voting procedures must be precleared by the Justice Department or a federal court. It is Congress’ failure to update the coverage formula that leaves the Court “no choice but to declare section 4(b) unconstitutional,” Roberts wrote. With a better, presumably less irrational formula, preclearance is still acceptable. The Court could have invalidated the entire concept of preclearance, as the Alabama county that brought the lawsuit asked, but only Clarence Thomas was willing to go that far.

So preclearance survives conceptually, but is essentially moot unless and until Congress can legislate a more up-to-date formula for deciding which states and counties are affected. That might seem doable given that when Congress reauthorized the Act in 2006 it did so with huge majorities in both parties. But in today’s increasingly polarized legislative environment, getting a new voting rights preclearance formula through Congress seems (metaphor alert) like an uphill battle to say the least.

Now on to the Supreme metaphors! Let the battle commence.

First up is the majority opinion, tackling a claim by the dissent that Alabama’s Shelby County, which brought the suit, lacks standing to challenge the Act because Shelby itself is a place where voting discrimination has been documented. Roberts swings the metaphorical bat:

That is like saying that a driver pulled over pursuant to a policy of stopping all redheads cannot complain about that policy, if it turns out his license has expired.

Now to the dissent, attacking the majority for underplaying what it calls “volumes of evidence” supporting Congress’ determination in 2006 that backsliding was a realistic prospect. You’re up, Ruth Bader Ginsburg:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

I like Roberts’ simile because it succinctly and colorfully captures the argument he is trying to make, although it is technically flawed by irrelevancy. There is no conceptual link between hair color and license validity, whereas in the voting rights case, we are talking about related things: Shelby County’s empirical record of voting discrimination (the expired license) and the county’s objection to voting discrimination rules in force (the stop-all-redhead policy). Even so, a nice one; I give Roberts a B+.

Ginsburg’s umbrella simile is clumsier because it doesn’t capture the essence of her argument as neatly, and actually distorts its target — the other side’s claim. For its many flaws (and there are many), the majority opinion does not deny that preclearance has worked and can continue to work. The Court’s ruling doesn’t throw away the umbrella, though it does declare use of the umbrella off limits until its design is improved. Also a good one, but Ginsburg only rates a B.

On the merits I find the dissent more compelling, although only slightly so. The majority opinion’s logic is stronger in many respects, but its legal foundation is suspect. But logic and legalities — those are just sideshows. The metaphors are the main event — and on that stage … a narrow win for Roberts and the conservatives!

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.