Justice Scalia's Infuriating Hypocrisy

The opening lines of Antonin Scalia's dissent in United States v. Windsor—where a 5–4 majority of the Supreme Court overturned the 1997 Defense of Marriage Act on equal protection grounds—are straightforward: "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."

For anyone interested in judicial restraint, it’s a compelling case. Too bad Scalia doesn’t fit that description. To wit, this unwillingness to strike down “democratically adopted legislation” was nonexistent just yesterday, when he joined John Roberts's opinion on Shelby County, Albama v. Holder. There, he agreed with the Chief Justice’s decision to strike down Section 4 of the Voting Rights Act, despite the fact that it had been reauthorized by a near-unanimous Congress in 2006.

What explains the difference between the two laws? Easy. Scalia (and Roberts, for that matter) don’t believe that racism is a problem anymore, so they don’t like the idea of the federal government using its power to stop racial discrimination in voting. But they do like the idea of a federal government that disadvantages same-sex couples (it's worth reading Scalia’s previous thoughts on LGBT Americans), and so in the case of DOMA, the majority's will must be preserved!

The hypocrisy is stunning, and—given the likely restrictions on voting that will come as a result of the VRA decision—infuriating.

SO THEY SAY

"In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity' which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that 'personhood and dignity' in the first place ... As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."

Justice Antonin Scalia, on the future of same-sex marriage

DAILY MEME: CLIMATE CHANGE WE CAN BELIEVE IN

  • On a sweltering day that required him to remove his suit jacket, President Barack Obama yesterday unveiled a climate change plan The Atlantic called "a big deal for environmentalists" in front of a Georgetown University crowd.
  • Al Gore called it "the best address on climate by any president ever." Mick Jaggerliked it, too.
  • Coal companies didn't, with the stocks of several firms plunging after the president's announcement.
  • "The overwhelming judgment of science, of chemistry and physics … have put that to rest," Obama said—that being the question of whether climate change is real.
  •  While such rhetoric produced minor anxieties in energy investors, what really spooked them was when the president stated he'd bypass Congress to implement his plan.
  • The major change would be an executive order that the Environmental Protection Agency set stricter limits on pollution from existing power plants, though implementation will likely take years.
  • The goal is to reach a 17 percent reduction in emissions by 2020, the same goal that was set for the cap-and-trade plan that failed in 2010.
  • Even though the administration has been legally obligated to file that order since 2009, many environmental leaders are happy with the announcement.
  • The National Review's editorial board wrote that the plan is "radical" and that it would affect "every economic activity." Charles Krauthammer said the potential pollution regulation "was intended to kill coal."
  • The United States is among the largest emitters of greenhouse gases per person in the world. Last year was the hottest for the United States on record. "Loss of sea ice, accelerated sea level rise and longer, more intense heat waves" are among the effects of recent climate change.
  • "The question now is whether we will have the courage to act before it’s too late. And how we answer will have a profound impact on the world that we leave behind not just to you, but to your children and to your grandchildren," Obama saidyesterday.

WHAT WE'RE WRITING

  • The Supreme Court ruling in Fischer v. University of Texas made it much more difficult to justify race-based affirmative action programs. Progressives, writes Richard Kahlenberg, need to realize that the future of affirmative action lies in class.
  • The Supreme Court hasn’t seen the last of same-sex marriage. For now, though, Gabrial Arana reports that the battle is back in the hands of the states.

WHAT WE'RE READING

  • The Washington Post summarizes eight key moments from Texas state Senator Wendy Davis's filibuster last night, which helped defeat a bill that would have closed nearly every abortion clinic in the state.
  • Ed Markey won yesterday's special election in Massachusetts to fill John Kerry's Senate seat.
  • Government regulation never works; the Voting Rights Act worked; therefore it must be repealed. Julia Ioffe evaluates this and similar arguments composed of "piles of mind-melting anti-logic ... common in conservative quarters."
  • Automatic voter registration, guaranteed early voting, and same-day registration should become a Democratic priority now that the VRA is gutted.
  • Gay married couples are happier than straight married couples.
  • A surge in gun purchases brought on by the fear of possible firearms regulation has sellers scrambling to stock their shelves.

POLL OF THE DAY

Once-shamed former congressman Anthony Weiner is now favored by 25 percent of likely voters in the New York City Democratic mayoral race, according to a new NBC 4 New York/Wall Street Journal poll. The results come as a surprise both because Weiner has gone from has-been to front-runner in a matter of weeks, and because longtime leader Christine Quinn has dropped five percent behind after leading by the same amount just a month ago.

 

Comments

The members of the SCOTUS are politicians in robes, John Roberts most of all. Some have said that Roberts - in contrast to last year's decision on the AFA - forgot about or ignored his future legacy in deciding on the VRA. To the contrary, he is all about his legacy: to preside over a court that cements the power of corporations and the 1% against the democratic action of the popular majority.

Tuesday's decision was about maintaining that power. The 1% knows our country's demographics are changing and they greatly fear it. Making it harder for the 99% to vote is a major part of their strategy to thwart popular power.

Roberts is relatively young. He will be at this for some time to come. A constitutional showdown is inevitable.

...and regarding last year's AFA decision:
Ruling against it might have made the future privatization of Social Security Roberts and his caste have on their agenda more difficult to legally sustain.

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