Last week in separate cases, the Supreme Court declared section 4 of the Voting Rights Act and section 3 of the Defense of Marriage Act to be unconstitutional. Most conservatives applauded the former decision and criticized the latter, while for most liberals it was vice versa. I can understand the liberal view, since they think the courts’ job is to write liberal policies into law (or leave those policies in place, if Congress has beaten them to it). The conservative position on these two cases is a little harder to reconcile.
Remember, both laws were approved by Congress with lopsided, bipartisan majorities (DOMA at its enactment in 1996, VRA at its most recent renewal in 2006) after extensive debate and consideration, and both were signed by the president. So if you think the courts should defer to the elected branches, it’s a high hurdle to support either decision. In both cases, the idea behind nullification seems to be that the passage of time has rendered the relevant sections unconstitutional, even though they were (or seemed to be) constitutional when passed: On VRA, it makes no sense to penalize states and localities based on 40-year-old statistics, and on DOMA . . . well, we’ve all learned a lot about homosexuality in the last couple of decades.
Yet as refreshing as it is to see the jobs-for-lawyers racket that is VRA preclearance being struck down, and to see the cynical deal to protect Republican districts and black officeholders that was the 2006 VRA renewal being chipped away, the VRA decision should leave conservatives as uneasy as the DOMA decision does. To be sure, Justice Roberts cites traditions and interpretations that suggest all states should be treated the same; but the whole point of the original VRA was to treat states differently based on their histories — and if 30 years was not enough to get the job done but 40 years is, shouldn’t that finely calibrated decision be made by Congress (which the Fifteenth Amendment explicitly gives the authority to enforce voting rights)?
A VRA supporter might say, for example, that we need to wait until most of the people who grew up under Jim Crow are gone, which is wrong but at least debatable. (If you point out that black turnout exceeds white in many areas, the reply might be: “See? It works!”) Is it the Supreme Court’s job to weigh in on political questions like this? Or, if it is OK for the Supreme Court to decide that this argument is too weak to accept, why shouldn’t it also be able to decide that in the 21st century, defining marriage as the union of one man and one woman in order to reinforce the mental association between sex, marriage, and procreation is also too weak?
All arguments of this type eventually come down to one side saying, “The courts should defer to Congress unless something is blatantly unconstitutional,” and the other side responding, “But this is blatantly unconstitutional.” Generally this response is a measure of how strongly the respondent feels about the issue, not how weak its constitutional status is. Say what you will about Anthony Kennedy, but if he resigned tomorrow, we would all be clamoring for the Supreme Court to exercise greater restraint. If we want to be consistent (something liberals never worry about), we shouldn’t wait until the numbers are against us to adopt that stand.