Civil and Human Rights

The Supreme Court’s Constitutional Hypocrisy

By Ari Berman


In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”


Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”


Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?


It doesn’t seem like the Chief Justice has a very sound grasp of the Constitution when it comes to the VRA. Richard Posner, an esteemed conservative legal theorist at the University of Chicago and a judge on the US Court of Appeals for the Seventh Circuit, wrote in Slate that Roberts struck down Section 4 of the VRA for violating the “fundamental principle of equal sovereignty,” which, as Posner writes “is a principle of constitutional law of which I had never heard—for the excellent reason that…there is no such principle…The opinion rests on air.” The extensive record developed by Congress, most recently in 2006, Posner writes, “should have been the end of this case.”


David Gans of the Constitutional Accountability Center made a similar point to Steve Benen of MSNBC’s MaddowBlog yesterday:


The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.


His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.


Voting rights historian Steven Lawson, author of numerous books about the VRA and its impact, shared his like-minded conclusion with me. Writes Lawson:


Apparently the first amendment and the 14th amendment are meant to protect corporations and states but not the folks for whom it was designed. This is an activist court that decreed the coverage formula was outdated even though Congress held numerous hearings and found evidence that proved otherwise. So much for the conservative principle of judicial deference…This is an ideological, ahistorical decision.


Justice Roberts has been opposed to the VRA for three decades, ever since he was a young lawyer in the Reagan Justice Department. His sweeping and radical decision yesterday was more about ideology than the law, constitutional principles or congressional deference be damned.

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