Some commentators have followed a familiar path of least resistance in interpreting the major Supreme Court rulings of yesterday and today. David Leonhardt of the NYT, for example, achieves superficial false-equivalence-correctness by tweeting: “Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.” Leave aside the happiness I imagine plenty of Republicans (Ted Olson, for starters) feel today. The Court has the power of judicial review, but ought to use it wisely, to resolve actual cases and controversies on the basis of upholding the Constitution, especially its guarantee of equal protection of the laws regardless of majority opinion. The Voting Rights Act has been a powerful, landmark law to redress very real grievances and overcome horrible centuries-old injustices. It is obtuse and childish to equate it with the so-called Defense of Marriage Act, which had no such noble purpose in 1996–you can watch John Lewis’s anti-DOMA speech from 1996 on YouTube demolishing it on civil rights grounds–and looks utterly ridiculous now to most young Americans. Perhaps the Voting Rights Act could use tweaking and updating, but Chief Justice Roberts was way out of his depth in dismissing the legislative renewal of 2006 as senseless. And no one paying attention could equate Justice Ginsburg’s pointed, forceful yet civil dissent with Justice Scalia’s ugly and abusive trolling.
There may well be equivalence among politicians, bureaucrats, and, yes, all of us in that we seek either reelection or reconfirmation of our existing opinions. The gay marriage decisions today will, as time goes on, appeal to a wide majority of Americans because they affirm core parts of our self-image and self-understanding: Justice Kennedy affirmed the “equal dignity of same-sex marriages,” though without, yet, invalidating the indignity nationwide. To use a Civil War term, he was not ready yet to make “freedom national.” But the rapid momentum toward legal, civil equal treatment is clear, and the main lines of the decision are relatively clear and clean. Not so with the impatient, tortured, Panglossian lameness of Justice Roberts’ majority ruling gutting the Voting Rights Act. Benjamin Franklin, archetypal American for many, termed his youthful sins mere “errata.” We might like to take up Justice Roberts’ invitation to reduce our historical stains to errata. Our real history, though, contains some awful messes. If we pretend otherwise, do we really make it easier to clean up and move beyond the messes?
The reflexive pox on both your houses mindset is an easy default position–but in this case very hard to defend with detailed and informed historical or moral arguments.
- Richard Posner Calls Chief Justice John Roberts “Disreputable”… (delong.typepad.com)