I’m not going to delve into Eric Holder’s sorry legacy as Attorney General here, but I cannot pass over the flatly wrong assertion in this Washington Post house editorial (and made elsewhere, including by Holder) that the Supreme Court’s ruling in United States v. Windsor somehow “vindicated” Holder’s decision to have the Department of Justice abandon its defense of the Defense of Marriage Act.
Let’s review the basics:
1. When Eric Holder announced the Obama administration’s decision not to defend DOMA, he claimed that that decision was consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” Holder, in other words, was maintaining that no reasonable defense of DOMA could be offered. He was not purporting to base his refusal to defend DOMA on a judgment or prediction that a Supreme Court majority would strike down DOMA.
2. Holder’s claim that no reasonable arguments could be offered in defense of DOMA was clearly wrong at the time he made it, for the reasons that I spelled out in Part III of my House of Representatives testimony. For present purposes, the relevant point is that nothing the Court did in Windsor remotely suggests that it agreed that no reasonable arguments could be made in defense of DOMA.
The four dissenters, of course, emphatically rejected Holder’s position, as they concluded that the arguments on behalf of DOMA were not merely reasonably but sound. Although the majority ruled against DOMA, nothing in the majority opinion implies that no reasonable arguments could be made on behalf of DOMA.
Indeed, perhaps the only point on which the majority and the dissent appeared 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.”
In short, there is no evidence that a single justice agreed with Holder that no reasonable arguments could be offered in defense of DOMA. That’s some vindication.
3. What might actual vindication have looked like? If the Court had sanctioned or scolded the defenders of DOMA for presenting frivolous arguments, or if it had summarily affirmed the Second Circuit’s anti-DOMA ruling without bothering with full briefing and oral argument, then Holder might reasonably claim vindication.
4. In a sound legal culture, Holder’s refusal to defend DOMA would be recognized as a shameful moment in politicized government lawyering and as a dangerous precedent that deserves condemnation. If and when a Republican attorney general chooses to follow Holder’s example, the Washington Post and other Holder cheerleaders may come to rue what they have sown.