by Matthew Nelson

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(This article originally appeared on As It Ought To Be)

The Supreme Court has been getting a lot of attention lately. With the deluge of end-of-term decisions over, it seems everyone is taking turns surveying the damage. But while most commentators ask “helping-or-hurting” questions – How big of a setback was the Prop 8 ruling for marriage traditionalists? Did racism win the day at the University of Texas? – I want to draw attention to a different set of questions raised by two of the year’s biggest decisions. These decisions, on gay marriage and voting rights respectively, offer an excellent opportunity to revisit our government’s famed system of “checks and balances” and ask just what we expect the various branches to do to get along.

In United States v. Windsor, the Court struck down a provision of the Defense of Marriage Act (DOMA) that prevented even already-married same-sex couples from receiving the benefits of a federally acknowledged marriage. It did so because it found that the law violated the so-called “due process clause” of the Fifth Amendment.  So far, so good – this much accords well with our ordinary conception of how the federal government works – the legislature enacts laws, and the judiciary reviews their constitutionality. But in order to get to a place where they could even rule on DOMA’s constitutionality, the Court first had to answer a strange procedural question – was there even a real case to decide?

The problem was that the two sides seemed to agree on the correct ruling. Both the plaintiff, Edith Windsor, and the defendant, the U.S. Government (as represented by its Executive Branch), agreed that the law was unconstitutional. Accordingly, Ms. Windsor ought to be entitled to a refund of more than $350,000 in taxes that she was forced to pay on the estate of her deceased spouse, Thea Spyer, because under DOMA her same-sex marriage did not qualify her for surviving-spouse tax exemption. This led Justice Scalia, in oral arguments, to ask why the case had made it to the Supreme Court at all. What made it different from a debt-related lawsuit where the debtor agrees he owes money but just refuses to pay? In that case, there is no case – the debtor owes the money, no questions asked.

But the Executive Branch disagreed…kind of. Although they refused to defend DOMA’s constitutionality, they insisted on enforcing it and requested that the Court continue with the case as if everything were normal. However, because the Executive refused to defend the law, the Bipartisan Legal Advisory Group from the House of Representatives had to step in instead. Their representative, Paul Clement, pointed out that this convoluted scheme had already led at the District Court level to “the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” Justice Kennedy noted that that is enough to “give you intellectual whiplash.” Indeed.

From here things return back to normal. The Court decided to look past the legal acrobatics necessary to keep the case alive, and went on to strike down DOMA’s key provision. But let’s not follow them there. The behavior of the Executive Branch should give us pause. The Executive argued that it had a constitutional duty to uphold and enforce duly enacted laws, such as DOMA. On the other hand, it did not believe DOMA itself to be constitutional. What this leaves us with is a contradiction: a claimed constitutional duty to uphold an unconstitutional law.

This goes against not only logic, but also the intent of our “Founding Fathers” in drafting the Constitution. As Akhil Reed Amar notes in his detailed “biography” of the Constitution,

Accustomed as we are to seeing the judiciary – particularly, the Supreme Court – as the sole and unique interpreter of the Constitution, many modern Americans might bridle at the idea that the framers envisioned the president as America’s first magistrate, with important and independent authority to construe and defend the Constitution. Yet even Court-centered observers should recall that a president’s principled refusal to enforce a law that he in good faith and after careful consideration deemed unconstitutional could often be the vehicle for bringing an issue before the courts…Even if the case could otherwise reach the judiciary, a henchman president executing congressional orders that he believed unconstitutional would often be placing an expensive burden of initiating litigation upon an innocent private party rather than upon a powerful (and to the president’s mind, offending) legislature.

Readers sympathetic to President Obama might balk at the idea of calling him a “henchman president.” After all, he and Congress are not always on the best of terms. We can even come up with a number of sound political reasons why he might have done as he did. Perhaps further antagonizing Congress would have cost him more political capital than it was worth, especially given that he anticipated that the Court would set things straight. But this strategy ought at least to give us pause. Do we want a president who bends over backwards to have his cake and eat it too, even at the possible expense of basic constitutional justice? On the other hand, we may not want the alternative renegade president who loses his legitimacy in the eyes of Congress.

The question may not be as simple, moreover, as whether or not the president lacks “the courage of his convictions,” as the Chief Justice put it. We might understand Obama’s actions here as a good-faith attempt to respect the will of the people. Obama is but one man, while the House of Representatives, the Senate, and the (Democrat) president who signed DOMA into law were many. To refuse to enforce a duly enacted law might seem hubristic, not only to Obama, but to the American electorate as a whole. And here is where we must face the difficult questions entailed in the separations of powers. If we laud Obama’s support of gay rights, must we also laud his bow to Congress? Just how independent do we want the Executive and the Legislative Branches to be?

Thankfully, we don’t have to (or perhaps, frustratingly we don’t get to) approach these questions in the isolation of a single case. Another major ruling, Shelby County v. Holder, also raises questions about deference and political strategizing between branches. In Shelby, the Court struck down Section 4 of the Voting Rights Act, which defined certain districts that would be required to get approval from the federal government before making any changes to voting procedures to make sure the changes were not racist (either in intention or in effect). Only the formula for determining which districts were covered was struck down, the actual pre-approval process (Section 5) was left unchallenged. The problem, as the Court saw it, was that the formula was outdated. It did not include states or counties based on the discrimination they were guilty of now, but on discrimination at play in 1964. According to the majority’s mantra, the law “imposes current burdens and must be justified by current needs.”

Many have noted that this effectively cuts the legs out from under Section 5. An op-ed for The New York Times nicely summarizes one common understanding of the Court’s ruling: “The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past.” That the ruling deals a major, perhaps mortal, blow to Section 5 is obvious and not very controversial. What is striking is that everyone seems to agree that this fact is relevant to the ruling – not just that the Court knew it, but that it should have acted differently for that reason.

Let’s consider the implications of this carefully. In effect, such a stance suggests that not only should the Court consider each part of a law separately to determine its validity, it should also take into account likely political fallout in Congress of the decision. If it did so in this case, it would see that Congress would likely never agree on a new formula for Section 4. Accordingly, it should have decided that the need for an effective Section 5 was great enough that Section 4 should not be examined at all, because to do so would jeopardize Section 5. I don’t want to suggest that this reasoning is necessarily wrong. I only want to emphasize the extent of its implications and just how far it deviates from the normal picture of an autonomous Court that coolly and judiciously picks apart laws to determine where, if at all, they fail a constitutional test.

Of course, it is possible that Section 4 is constitutional on its own grounds, but most critical attention has conspicuously avoided that question and relied on a logic similar to the one above (an exceptional case, that perhaps comes close to establishing Section 4’s constitutionality, but tellingly fails to even mention it, can be found here). Let us also bear in mind that many who hold this position, including Justice Ginsburg in her dissenting opinion, are at pains to mention just how close to unanimity Congress came in 2006 when renewing the Voting Rights Act, and how diligently they pursued renewal. This deference to Congressional consensus is tricky, because it leads in the opposite ideological direction in the DOMA case.

This is why it is important that we see these cases as more than just isolated moments that help or hurt our favorite causes. They are also part of the much larger, on-going processes of Supreme Court jurisprudence and federal governance. There is a wide variety of stances we can take – from three branches with blinders on, each ignoring the other, to everyone bowing to Congress unless their job description explicitly tells them to do otherwise. The proper solution is probably somewhere in the middle, but it is worth our discussing how we should figure out where.

About the Author:

 

Matthew Nelson is a PhD student in Comparative Literature at the University of Illinois. His interests range from Modern Sanskrit to Martin Heidegger, but his dissertation focuses on translation as a form of cultural memory in contemporary India.