David’s recent post on the Supreme Court’s decision striking down DOMA and allowing same-sex marriages to continue in California suggests that today represents “a good day for equality in this country.” I agree. I, like David, completely applaud the policy result in Windsor and I’m heartened that the continuation of same-sex marriages in the nation’s largest state help signal major cultural change nationwide on the issue. While this might be a good day for equality, however, I’d argue that it is not such a good day (or, more accurately, past few years) for the health of representative government.
Just in the last few days, we’ve seen the Court strike down DOMA on a 5-4 vote, a similar narrow vote striking down a crucial part of the Voting Rights Act, and a decision that continued but looked skeptically on states’ use of affirmative action. This week, I believe, cements the current Roberts Court as the most activist in all of American history. This Court has struck down law after law without much concern about the representative process. While it (barely) upheld most of the Affordable Care Act last year – while simultaneously opening the door to limitations on future congressional powers – it also struck down a key provision dealing with Medicaid expansion that will affect many low-income Americans nationwide. It was this same Court, of course, that absurdly decided in Citizens United that unlimited political expenditures was somehow protected by the First Amendment, casting aside decades of legal precedent and a major congressional statute. More obscurely but no less importantly, the Court, including over the past two weeks, has made it increasingly difficult for victims of discrimination or corporate greed to challenge harmful conduct by employers and businesses.
In the glow of the admittedly very positive developments concerning gay rights today, I urge progressives (and really everyone) to keep an eye on the big picture. We often complain that Congress can’t get anything done, and there’s a lot of truth to that thanks to extreme polarization and procedural tools like the filibuster. Given the Roberts Court’s expanding willingness to strike down federal and state statutes with abandon, however, the Court has become a major roadblock to even those statutes that manage to navigate the increasingly difficult legislative path.
It is disheartening to realize the sheer reach of the Supreme Court’s power in nearly all facets of politics nowadays. While conservatives bemoaned the “activist” Warren Court in the 1960s, it is worth noting that most of the Court’s decisions at that time struck down state statutes – many of which (though not all) were out of step with the rest of the country. The Roberts Court, by contrast, simply doesn’t seem to care about representative government at any level. Overwhelming majorities in Congress enacted and continuously re-authorized the Voting Rights Act? And the McCain-Feingold Campaign Reform Act? No matter – we’ll strike them down on the basis of flimsy reasoning. Meanwhile, the skepticism of state law is still very much present. Many states have enacted stronger consumer protections against corporate conduct, for example? Cities want strong gun control measures to cut down on crime? Who cares about federalism – we’ll strike them down.
This is not a healthy development for the body politic. In Federalist #78, Alexander Hamilton famously argued that the judiciary “will always be the least dangerous to the political rights of the Constitution” because the courts “may truly be said to have neither force nor will, but merely judgment.” That was in 1788, but the Roberts Court shows how poorly Hamilton’s observation applies in the modern era. It is increasingly the nine unelected members of the Supreme Court, and not the elected branches, that are determining the shape of contemporary America.
Sometimes this means good policy results for progressives. More often it has meant political victories for conservatives. Either way, it shouldn’t be seen as a victory for the present and future of American politics.