Though not reportedly as angry as he was delivering his dissent from the bench ten years ago in Lawrence v. Kansas, the case that struck down all extant anti-sodomy laws in the country, Justice Antonin Scalia today delivered another bench dissent in the DOMA case, United States v. Windsor, in which he railed against the majority's lack of respect for Congress and their eagerness to judge the merits of a law which they have no jurisdiction to overturn.
Delivering a dissent from the bench is unusual and reserved only for those cases in which a justice feels particularly strongly that the majority got it wrong. Scalia is famous for his dramatic and caustically worded dissents, and this one is no exception. He writes:
The Court is eagerhungryto tell everyone its view of the legal question at the heart of this case ... The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” ... But wait, the reader wondersWindsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted). That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. 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.
He goes on to reach back into precedent dating as far as 1793 because that's just the kind of guy he is describing how the Court has overstepped in this case by writing an opinion on the merits of DOMA when they didn't need to. He also attacks the majority for pretending that it isn't issuing a broad ruling on gay marriage nationwide. He writes:
It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.
But as a number of lawyers in court today listening to Scalia were quick to observe, Scalia's vehement feelings regarding respect for the other branches of government and laws enacted by Congress were totally absent yesterday during the delivery of the majority opinion striking down the central provision of the Voting Rights Act of 1965. Roberts penned that decision, with Scalia joining him, but as Justice Ginsberg pointed out in her dissent yesterday, that decision comes down to the same question about the Court's role in policing acts of Congress. While she disagreed with DOMA and believed it needed to be struck down, she calls the Voting Rights Act "one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation's history." She goes on to write:
Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.
Roberts filed a separate dissent in the DOMA case today saying he agreed with Scalia on the issue of jurisdiction, but that he believed the spirit of the majority's opinion was, in fact, rooted in federalism and a belief in states' rights.
