I’m on vacation at the moment, and so even less “on the news” than usual (and I’m usually not very). So apologies for posting so late about this week’s Court news, and apologies as well if what I have to say has already been said elsewhere and better. But I’ve had, frankly, more enjoyable things to do.
That having been said, I did enjoy reading Ross Douthat’s blog post agreeing with Ramesh Ponnuru’s view that a Court that eschewed “judicial activism” or “legislating from the bench” would have ruled the opposite way as the Roberts Court did on both the Voting Rights Act and the Defense of Marriage Act. That is to say, it would have deferred in both instances to the judgment of Congress, even if it didn’t think Congress exercised that judgment especially responsibly.
It’s been a long time, though, since judicial conservatives were advocates of deference. Indeed, if “conservative” is taken to be synonymous with “right-wing,” I’m not sure deference has ever been a conservative hallmark. In recent history, the Justice who was probably best described as consistently deferential was “Whizzer” White, a Democrat appointed by President Kennedy who, notwithstanding his vote on Roe, is hard to describe as a judicial conservative in the either the Rehnquist or the Scalia mold, to say nothing of a right-wing radical like Thomas.
Rather, the hallmarks of modern judicial conservatism have been the “federalist revolution” begun under Rehnquist and the “law and economics” revolution championed by judges like Richard Posner and Frank Easterbrook. And both the Voting Rights Act decision and the Defense of Marriage Act decision fit comfortably within those judicial movements.
Both decisions, after all, curbed the power of Congress to frustrate the policy objectives of state governments. In the Voting Rights Act case, the Court held that Congress could not go on subjecting certain states to special onerous procedures for approving their electoral laws without demonstrating very good reason for doing so. In the absence of such a reason, state sovereignty trumped the 15th Amendment’s clear delegation to Congress of the power to protect the right to vote for racial minorities “by appropriate legislation,” (which is a pretty open-ended grant to set aside). In the Defense of Marriage Act case, the Court held that Congress could not define marriage at the Federal level in a way that conflicted with state law; if New York chose to extend marriage rights to same-sex couples, the Federal Government had no right to withhold recognition of that state-level decision. The Court did indeed show a lack of deference to Congress – but in both cases, it did so in a conflict with state governments.
That doesn’t mean they were both good or both bad decisions. As it happens, I’m decidedly unpersuaded by the reasoning in the Voting Rights case, whereas I think the Defense of Marriage case was a pretty logical application of precedent. All I’m pointing out is that deference to the national legislature was what FDR was agitating for, and has not, historically, been the cause célèbre of judicial conservatives.
I think Douthat is right, though, that in both cases the Court was doing what, on some level, everybody knows Congress ought to be doing. There is little question that the current Congress would not pass the Defense of Marriage Act. Indeed, were it to expire, I doubt whether the current Congress would bring a renewal up for a vote. But there is also little question that nobody – including nobody on the left – thinks that the historic formula for the Voting Rights Act actually makes any sense; many of the examples of voting rights infringements that have outraged the left in recent years have come from states that are not subject to preclearance, like Ohio and Indiana.
So I agree with him that the Court is stepping into a breach created by a legislature eager to hand over its responsibilities to others, and thereby avoid the political risks of legislating. The trouble is that the Court can’t do what a legislature can. Justice Scalia might believe that the issue of gay marriage is “more complicated” than the black and white view on the left, but DOMA wasn’t “more complicated” – it was brutally simple. And the choice before the Court was indeed a black or white one: strike down the law or let it stand.
And on the question of the Voting Rights Act, the Court can’t “remand” the law to Congress and force it to properly address the question of what data should determine when preclearance is required. All the Court could do is rule on the law’s constitutionality. Having ruled against, all opponents of Congressional involvement in policing voting rights infringement need to do to prevail is nothing.
There are a lot of reasons to want our legislatures to take up the responsibility of legislating. Advocates of judicial restraint tend to emphasize the “countermajoritarian difficulty” with judicial activism. But an equally valid reason is that only legislatures can legislate; only they have sufficient latitude.
Which brings me back to the question of deference. The advocates of judicial deference to the national legislature have, historically, also been the advocates of an effective national legislature. It’s very difficult to argue out of one side of one’s mouth that the judiciary should defer to Congress, while out of the other side of one’s mouth arguing that Congress’s main job should be putting itself out of a job. If the latter is the case, then what’s the rationale for deference?