Civil and Human Rights

In recent rulings, Supreme Court views Constitution’s promises in vastly different ways

The Constitution’s promise of equality for all persons was at the center of the Supreme Court’s biggest cases handed down this year, but the justices failed to offer any coherent understanding of this core constitutional ideal.


In the two biggest decisions, both decided by 5-4 votes, the justices struck down key parts of the “Defense of Marriage Act,” perhaps one of our nation’s most reviled laws, and the Voting Rights Act, long celebrated as the crown jewel of our democracy. The first was true to the Constitution’s text and meaning, the second flouted them. In these cases, the court’s progressive justices championed the Constitution, while conservatives, including originalist Justices Antonin Scalia and Clarence Thomas, abandoned it.

The Constitution’s protection of equality is universal: It covers all persons, whether black or white, man or woman, gay or straight.


In United States v. Windsor, the Supreme Court was true to this fundamental constitutional requirement. Justice Anthony Kennedy, joined by the court’s liberal wing, affirmed that the Constitution “withdraws from Government the power to degrade or demean,” holding DOMA’s regime of federal discrimination unconstitutional for the simple reason that “DOMA writes inequality into the entire United States Code.” In these few words, Kennedy powerfully captured the ways in which DOMA’s vast system of marriage discrimination was a frontal assault on the Constitution’s universal guarantee of equality. This ruling should be celebrated by all Americans across the political spectrum for its ringing affirmation of the American birthright of equality.


In dissent in Windsor, Scalia thundered that “we have no power under the Constitution to invalidate this democratically adopted legislation.” While Scalia’s biting words were simply wrong in Windsor, they fit perfectly the court’s decision in Shelby County v. Holder, a stunning, activist decision that struck down a key part of the Voting Rights Act without any basis in the Constitution.


It’s unbelievable that nearly 150 years after the Fifteenth Amendment prohibited racial discrimination in voting and nearly 50 years after the Voting Rights Act was enacted, we’re still fighting over the power of the federal government to protect the right to vote. The Constitution settles the question, expressly giving to Congress the power to prevent and deter all forms of racial discrimination in voting.


Ignoring the actual Constitution, Chief Justice John Roberts’ opinion in Shelby County argued that the Voting Rights Act violated the principle of equal sovereignty of the states. But no such principle exists. No matter how many times one reads our Constitution, the simple fact is that there is no “Equality of States Clause” in it. Such an amendment might be on many conservatives’ wish lists, but it is simply not part of the Constitution.


Three years ago, the Roberts Court gave us Citizens United v. FEC, holding that corporations must be treated the same as individuals and given the right to spend unlimited amounts of money to influence elections. Now in Shelby County, the court’s conservative majority have given us the equally faulty idea that states that deny or abridge the right to vote on account of race must be treated the same as states that do not.


In both cases, the Roberts Court took a wrecking ball to our system of democracy without any basis in the Constitution, elevating corporations and states over “We the People.”


Conservatives often assert that they alone are faithful to our foundational charter, but in Shelby County and Windsor, the progressive justices lay claim to the Constitution.

In Shelby County, Justice Ruth Bader Ginsburg’s dissent — perhaps the finest of her career — is a tour de force that lays out the Constitution’s text and history and shows how, under the Constitution, the Voting Rights Act is plainly constitutional.


In Windsor, the liberal justices, together with Kennedy, spell out the ideal of universal equality reflected in the Constitution and show how DOMA’s regime of marriage discrimination blatantly violates it. Contrast this with opinions from the court’s right wing.


Just a day after inventing a right of state equality in Shelby County, Roberts, Scalia, and Justice Samuel Alito wrote dissenting opinions in Windsor  that offered an utterly cramped understanding of equality, giving the federal government carte blanche to discriminate against married same-sex couples in all walks of life. The chief justice and his conservative colleagues would require Congress to treat all states equally, even when there is a compelling reason for not doing so (i.e., some persistently engage in racial discrimination in voting and some do not), while permitting the government to discriminate against married same-sex couples on the flimsiest of justifications.


This tortured understanding of equality simply cannot be squared with the Constitution’s text and history, which forbid invidious discrimination against all persons and also give to Congress broad powers to ensure that the Constitution’s promise of equality is a reality for all persons.

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