Questions of Principle

Glen Newey

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.