« | Home | »

Questions of Principle

Tags:

As we know, the ladder of the law has no top and no bottom, but its arguments often look like a Möbius band. What goes round, comes round on the other side. This week the US Supreme Court made a couple of landmark decisions, one about the 1965 Voter Registration Act, the other on the Defence of Marriage Act 1996 (and a California statute of 2008). Coverage of the decisions amounts to law-making as team sport. Liberals (and others) throng round their screens, agog to learn which bunch of mainly old white straight Christian men will prevail – prevail, that is, by vote, whether or not by the force of stronger argument. This week, each decision went 5-4, against a key provision of the VRA (boo!) and against DOMA (yeees!).

Few seem to find this an odd way for a self-described ‘mature democracy’ to go on. The Supreme Court’s power to ‘strike down’ congressional law is usually sourced to Marbury v. Madison 5 US 137 (1803). Marbury, a justice appointed by John Adams, had petitioned the court when the incoming Jefferson administration failed to deliver his commission. Led by John Marshall, the court refused to force Madison, Jefferson’s secretary of state, to hand over the commission via a mandamus writ, holding that the 1789 Judiciary Act, which gave the court this power, was at odds with Article III, and so unconstitutional.
 
At first Marshall’s judgment looks like a self-denying ordinance by the court. But in denying its own jurisdiction to grant mandamus it snagged a fatter prize: the power to decide when congressional laws breached the constitution. This power is not granted by Article III. So the judgment that in passing the Judiciary Act congress acted ultra vires could itself be seen as ultra vires – the kind of judicial cock-up or Anschluss that comes to be hallowed in the annals of legal precedent. Marshall declared, in resonant words now graven on the Supreme Court wall: ‘It is emphatically the province and duty of the Judicial Department to say what the law is.’
 
With both the VRA and DOMA, arguments of ‘principle’ are much to the fore. A perennially gnawed bone in Supreme Court jurisprudence is whether federal law unwarrantedly intrudes on state jurisdiction. It’s central to the VRA decision, concerning states’ rights to initiate measures such as literacy tests that affect citizens’ rights to register as voters; the 1965 act withheld these rights from certain states (basically, those with long records of anti-black racism) so as to hamstring disenfranchisement by stealth. This week’s verdict in essence parked the 1965 list of states so affected, on the grounds that the VRA had done its job.
 
The DOMA judgment arose from a New York woman’s claim, on the death of her female partner, to exemption from federal estate tax. The court held that DOMA’s prohibition of this violated ‘the principles of equal protection incorporated in the Fifth Amendment’. Judge Kennedy, for the majority, found that New York’s ‘proper exercise of its sovereign authority’ was flouted by DOMA because ‘what New York treats as alike the federal law deems unlike’ (i.e. gay couples).
 
For principle gastronomes the relevant norm in each case might be that federal law should let states do their stuff. But only one judge (Kennedy) voted to strike down the relevant parts of both the VRA and DOMA. Four (Roberts, Scalia, Alito, Thomas) swung one way on the VRA and the other on DOMA. Meanwhile Ginsburg, Kagan, Breyer and Sotomayor voted to nix DOMA but to keep the VRA. The No-to-VRA-Yes-to-DoMA swingers all owe their positions to the greater and lesser Bush, while their Yes-No enantiomorphs are Clinton and Obama people. In other words, passing issues like gay marriage and franchise denial from politicians to judges ends up politicising the judiciary.
 
Striking down laws is ‘an assertion of judicial supremacy over the people’s representatives in congress and the executive’; there is, ‘in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this court at the centre of the nation’s life’. Placing ‘the constitution’s entirely anticipated political arm-wrestling into permanent judicial receivership does not do the system a favour’ – Judge Scalia’s comments this week on the DOMA verdict; and, for once, it’s hard to disagree.

Comment on this post

Log in or register to post a comment.


  • Recent Posts

    RSS – posts

  • Contributors

  • Recent Comments

    • mideastzebra on Swedish-Israeli Tensions: Avigdor Liberman was not foreign minister November 2015.
    • lars hakanson on Exit Cameron: Europe will for good reason rejoice when the UK elects to leave. The country has over the years provided nothing but obstacles to European integration...
    • Michael Schuller on Immigration Scandals: The Home Office is keen to be seen to be acting tough on immigration, although I'm not sure that the wider project has anything to do with real number...
    • Geoff Roberts on What happened in Cologne?: The most surprising thing about the events in Cologne (and the most disturbing) is that some 600 incidents of theft, harrasment and rape were reported...
    • EmilyEmily on What happened in Cologne?: The author's argument is straightforward: Sexual violence is one beast; fears about migrants is another - let's not confuse the two. Alfalfa's poin...

    RSS – comments

  • Contact

  • Blog Archive

  • From the LRB Archive

    Chris Lehmann: The Candidates
    18 June 2015

    ‘Every one of the Republican candidates can be described as a full-blown adult failure. These are people who, in most cases, have been granted virtually every imaginable advantage on the road to success, and managed nevertheless to foul things up along the way.’

    Hugh Pennington:
    The Problem with Biodiversity
    10 May 2007

    ‘As a medical microbiologist, for example, I have spent my career fighting biodiversity: my ultimate aim has been to cause the extinction of harmful microbes, an objective shared by veterinary and plant pathologists. But despite more than a hundred years of concentrated effort, supported by solid science, smallpox has been the only success.’

    Jeremy Harding: At the Mexican Border
    20 October 2011

    ‘The battle against illegal migration is a domestic version of America’s interventions overseas, with many of the same trappings: big manpower commitments, militarisation, pursuit, detection, rendition, loss of life. The Mexican border was already the focus of attention before 9/11; it is now a fixation that shows no signs of abating.’

    James Meek: When the Floods Came
    31 July 2008

    ‘Last July, a few days after the floods arrived, with 350,000 people still cut off from the first necessity of life, Severn Trent held its annual general meeting. It announced profits of £325 million, and confirmed a dividend for shareholders of £143 million. Not long afterwards the company, with the consent of the water regulator Ofwat, announced that it wouldn’t be compensating customers: all would be charged as if they had had running water, even when they hadn’t.’

Advertisement Advertisement