According to this Washington Post article, Attorney General Eric Holder imagines that his decision two years ago to have the Department of Justice refuse to carry out its duty to defend the Defense of Marriage Act has been “vindicated” by the Supreme Court decision striking down DOMA. His former spokesman praises that decision as “a courageous political decision … that was completely grounded in the law.”
Perhaps the only point on which the majority and the dissent in U.S. v. Windsor appear to agree is that Holder acted irresponsibly in failing to defend DOMA. In his majority opinion (slip op. at 12), Justice Kennedy laments that the “Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and “poses grave challenges to the separation of powers.” In his dissent, Justice Scalia states (slip op. at 6 n. 2), “There is no justification for the Justice Department’s abandoning the law in the present case.”
When I presented my House and Senate testimony explaining that Holder’s decision to abandon defense of DOMA “reflects a sharp departure from the Department of Justice’s longstanding practice of defending congressional enactments” and this his explanation of that decision “cannot be taken seriously,” a number of very liberal Democratic appellate lawyers, with DOJ experience, who opposed DOMA told me privately that they completely agreed with me that Holder had acted irresponsibly. The Post article reveals that acting Solicitor General Neal Katyal and other “key department lawyers”—including “career lawyers”—strongly objected to Holder’s decision. If anyone has seriously made the case that Holder acted responsibly, I haven’t seen it.
Holder evidently believes that the fact that the Court ruled his way somehow vindicates his decision not to defend DOMA. But no one—not even Holder—has taken the position that DOJ is justified in not defending a statute simply because it believes or predicts that the Court will invalidate the statute. So Holder’s imagined vindication rests on an elementary error of logic.
As for Holder’s supposed courage: It’s touching to see that Holder’s former flack remains a loyal lapdog, but I would have thought that courage meant doing one’s duty in the face of pressure and at the expense of popularity, not abandoning one’s duty and caving to pressure.