The scene in front of the U.S. Supreme Court building at sunup on Wednesday in Washington, D.C.
J. Scott Applewhite, Associated Press
On court, it's all activism, but different
- Article by: Ruth Marcus
- Washington Post
- June 29, 2013 - 5:32 PM
The end of another momentous Supreme Court term compels the question: Is the accusation of judicial activism just another way of saying “decisions I don’t agree with”?
Consider the blockbuster finale. A majority composed of the conservative justices overturned a key section of the Voting Rights Act, triggering complaints from the liberal minority that the court was improperly substituting its judgment for that of Congress.
Indeed, as Justice Ruth Bader Ginsburg noted in her dissent, the majority was triply activist. It abandoned “its usual restraint” by considering a broad-based challenge rather than determining whether it was constitutional simply as applied to the particular Alabama county involved. Likewise, Ginsburg said, the majority “veers away from controlling precedent” about treating states equally “without even acknowledging that it is doing so.” And, “hardly showing the respect ordinarily paid when Congress acts to implement” the guarantee of voting rights, “the court does not even deign to grapple with the legislative record.”
The very next day produced a mirror-image gusher of outrage. Conservative justices squealed about an inappropriately activist court that had no business even deciding the constitutionality of the Defense of Marriage Act and no basis for overturning “this democratically adopted legislation,” as Justice Antonin Scalia wrote. “This case is about power in several respects,” he thundered. “It is about the power of our people to govern themselves, and the power of this court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”
If the conservative justices had any awareness of the irony of bemoaning the court’s failure to defer to one piece of democratically adopted legislation the day after overturning another, it was not apparent from the opinions.
Then again, I write that sentence from the perspective of someone who disagrees with the voting rights decision and supports the invalidation of DOMA. It can equally be said that Justice Anthony Kennedy, joined by the liberal justices in the DOMA ruling, betrayed no shyness about shunting aside the congressional definition of marriage.
So are both sides guilty of hypocrisy, or its lesser-included offense, an unintended lack of intellectual consistency?
There is a persuasive liberal case for a verdict of not guilty on both counts. On voting rights, it hinges on the constitutional underpinnings of the Voting Rights Act, and the 15th Amendment’s explicit assignment that, when it comes to ensuring voting rights, “Congress shall have power to enforce this article by appropriate legislation.”
As Ginsburg wrote for the dissenting justices, “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”
Indeed, she noted, the court has repeatedly reaffirmed congressional power to employ “any rational means” to protect the right to vote — a test that ought to be even easier to satisfy when Congress is merely reauthorizing a law that it has determined is working.
To this argument, the conservative justices offer no convincing response. But what of the liberal justices’ willingness to elbow aside congressional judgment when it comes to same-sex marriage?
This outcome can be squared with the liberals’ outrage over the voting rights decision but, candidly, it is less of a slam-dunk case, more of a judgment call about the proper role of the court as an essential backstop to equality.
As I see it, the court was wrong to substitute its judgment for that of Congress in voting rights, but correct in inserting itself on the subject of marriage because of its infringement on constitutional guarantees of liberty and equal protection.
DOMA “demeans the couple, whose moral and sexual choices the Constitution protects,” Kennedy wrote. In this sense, the liberal position on both voting rights and DOMA are linked, and impelled, by the Constitution’s solicitude for minority rights and individual liberty. I believe this is correct, but I also concede that this conviction cannot be disentangled from my conception of the Constitution and the sweeping protections it provides.
I have a harder time finding intellectual consistency in the conservative position in the two cases. On voting rights, the conservative justices are enormously deferential to states, and dismissive of congressional power, despite the explicit constitutional grant of authority to Congress. Yet they are respectful of congressional action, and happy to intrude on traditional state prerogatives, when it comes to same-sex marriage.
If there is a way to reconcile these results, I’m eager to hear it.
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