Wednesday, June 26, 2013

What Happened in the Supreme Court Today - The Power Grab

The more I look at today’s Supreme Court decision regarding the DOMA case, the more I don’t like it; not only because it pushes wide open the door to same-sex union (and other things regarding that), but also because it solidifies as precedent a creeping attitude change regarding the balance of power in our three-branch government.

Therefore, I’m going to write a little on this landmark case, extensively quoting from Justice Scalia’s brilliant dissenting opinion. This is the first post of two.

But before I do that, do a quick read of what this case was all about (and what it wasn't about). 

So, let’s talk first about the first aspect of this case. From Scalia:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter [the Supreme Court], with the predictable consequence of diminishing the former [Yours]. We [the Supremes] 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. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. (1)

That’s the argument: the Supreme Court overstepped its bounds. But how? Let’s dive in!

They [the People of the US] gave judges, in Article III [of the Constitution], only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” (1-2)

Scalia is laying the foundation here that the Supreme Court exists, as established by the Constitution, to address actual cases. What is an actual case? It is case where at least two parties have a disagreement. This sounds stupid, common-sensical, but this is what is at issue. (Oy.)

So, with actual cases, lower courts usually remedy the disagreement between the two parties. Only when the disagreement continues after the lower courts does the case comes before the Supreme Court. Scalia writes that the matter was settled in the lower courts. So, he writes:

the plaintiff [Windsor] and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? (2)

The answer to the question is that the other judges of the Supreme Court believe that the Constitution disagrees with DOMA (an act of congress) and that, in this disagreement, it is the “province and duty” of the judicial branch—in this case, the Supreme Court—to “say what the law is.” (2). Scalia is shocked by that line of argument because

It is an assertion of [the Judicial Branch’s] supremacy over the people’s Representatives in Congress [who passed DOMA] and the Executive [that is, the President who signed the bill]. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role. [As opposed to being co-equal with the other two branches of government]. (2)

Scalia notes how the founders established this separation of power so that the people’s right to self-rule would be guarded and that they would be protected from “the black-robed supremacy” of the judicial branch.

And so Scalia insists that

For this reason [of guarding and protecting the people] we are quite forbidden to say what the law is whenever “‘an Act of Congress is alleged to conflict with the Constitution.’” (3)

But,…  wait. I thought that was the role of the Supreme Court…

It is, but there is a requirement for it. Scalia explains:

We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. (3)
So, the Supreme Court can only say what the law is when the allegation will determine the outcome of a lawsuit, AND is contradicted by the other party. Since the plantiff, Windsor, and the US Government have AGREED in this case, Scalia rightly argues that the Supreme Court has no place to hear this “case” because there is no contradiction by the other party:

Neither party [Windsor or the US Government] sought to undo the judgment for Windsor, and so that [lower] court should have dismissed the appeal (just as we [the Supreme Court] should dismiss this case) for lack of jurisdiction. (5)


The question here is not whether, as the majority puts it, “the United States retains a stake
sufficient to support Article III jurisdiction,” ibid. The question is whether there is any controversy [that is, contradiction] between the United States and Ms. Windsor. There is not. (7-8)

Scalia then notes that to do what the Supreme Court is doing by hearing this case has no precedent

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. The [lawyers of the] United States reluctantly conceded that at oral argument. (5)

Good point.

in fact, past precedent dictates that the case be dismissed. Scalia notes the opinion of Chief Justice Taney in Lord v. Veazie in 1850 who, when confronted with two parties who agreed but who were pushing for the court to “say what the law is,” said:

The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a
nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” (11)

This concerns Scalia: why isn’t this court today considering past precedent and the ordinary understanding of the balance of power?

Scalia then goes so far as to wonder out loud about whether the other justices have a malicious intent about hearing this case: that is, to set a precedent for the Supreme Court itself: and that precedent is to “say what the law is” even when it doesn’t have the power to do so, and secondarily, to universally make precedent same-sex unions.

The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States. (5)

Scalia is calling this whole charade a power-grab.

He continues his critique by noting how the justices rationalized their decision. He says that they “relegate[d] a jurisdictional requirement” to the level of being simply a matter of “prudence,” which in turn, he says “enabl[es] courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.”

In other words, the justices side-stepped actual law and precedent, citing reasons of prudence—which is just another way of relativizing law so as to get what one wants.

Scalia takes offense at this. He says,

the existence of a controversy [in a case] is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. [What the other justices have done is] a breathtaking revolution in our Article III jurisprudence. (9)


Scalia cites a 1968 court case (Flast v. Cohen) that employed the same argument, saying that

We have been living with the chaos created by that power-grabbing decision ever since, [see Hein v. Freedom From Religion Foundation, Inc.,(2007)], as we will have to live with the chaos created by this one. (8)


So, what should have happened? Scalia writes that Congress passed DOMA in 1996. President Clinton (!) signed DOMA into law. Now President Clinton, if he felt the law was constitutional, had a right to refuse to sign DOMA into law. At which point,

the [lower] District Court could not have refereed this friendly scrimmage, and the [President’s] determination of unconstitutionality would have escaped this Court’s [the Supreme’s] desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. (10)

That would have been the correct way to address the issue under the Constitution.

But instead, says Scalia, the Supreme Court simply enacted its desire to “place this Court at the center of the Nation’s life.” (11). This is problematic for many reasons, but the one reason that Scalia addresses specifically is the matter of confrontation; that is, the three-branch system of government requires that each branch, when it disagrees with another branch, should confront the other in the manner that confrontation is expected by each branch. So, for example,

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. (14)

Because the Supreme Court has amassed to itself too much power, this confrontation no longer (or, will no longer) exists. Thus, a new branch of government will arise: lawyers. And that's what the world needs, right? More lawyers? Yes, 

Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. (14)

So, that's the first part. Check back for part two when I discuss the same-sex union aspect of this.....