The ruling [in Shelby County v. Holder] was expected, but deeply wrong. In striking down a core provision of the Voting Rights Act, the justices flouted the text and history of the 15th Amendment, which expressly gives to Congress the power to prevent all forms of voting discrimination. The majority justified its ruling by invoking state sovereignty, forgetting that the 15th Amendment was designed to limit the acts of states.
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When Justice Anthony Kennedy began to read from his opinion in United States v. Windsor, and it became clear the court was striking down a key provision of the Defense of Marriage Act as an affront to the human dignity and equality of rights to which gay men and lesbians are entitled by our Constitution, I was exhilarated; history had been made.
Justice Kennedy, quite properly, treats DOMA’s vast system of marriage discrimination as a frontal assault on the Constitution’s universal guarantee of equality, explaining that DOMA’s “principal purpose is to impose inequality” by placing “same-sex couples in an unstable position of being in a second-tier marriage.” This rank discrimination, he continued, “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.”
Justice Kennedy wrote the decisions striking down DOMA today and striking down Texas’s anti-sodomy law ten years ago. The final piece in ensuring his place in history may well be to eventually recognize that the Constitution requires all states to follow the Constitution’s guarantee to any person — regardless of race, sexual orientation, or other group characteristics — equality of rights, including the fundamental right to marry the person she loves.
The most basic requirement of any Supreme Court decision involving the application of the Constitution is to explain how the Constitution's text and meaning command the result the Court reaches. By that standard, today's 5-4 opinion in Shelby County v. Holder is a colossal failure.
The Supreme Court may be reluctant to unequivocally decide what it considers to be a hot-button social issue that is still percolating through the states. The Constitution, however, stands for the proposition that some rights cannot be left to the whims of a democratic majority. Equality before the law is one of those rights.
Justice Kennedy’s 7-1 ruling recognizes that government may, in appropriate circumstances, use race in order to ensure a diverse, integrated student body and to provide pathways to professional life and leadership for all of the state’s residents regardless of race.
In this context, President Obama does not need judges who will advance a progressive agenda. He simply needs judges who will uphold validly enacted laws and reasonable regulations. This is reflected in his nominees, two of whom served in the Department of Justice under President George W. Bush and all of whom have been given the American Bar Association's highest possible ranking. President Obama has done his job. It's time for the Senate to do theirs.
Rather than accounting for this history, the conservative arguments in Fisher depend on running from it. The Constitution’s text and history are supposed to matter to the court’s conservatives — particularly originalists like Justices Antonin Scalia and Clarence Thomas, perhaps the most committed foes of affirmative action on the bench — but for nearly 40 years, conservatives have yet to grapple with, let alone answer, the clear import of the 14th Amendment’s text and history. The fundamental question in Fisher is whether the court’s conservatives will finally honor the text and history of the 14th Amendment or continue to disregard it.