Jul 22, 2013, Vol. 18, No. 42 • By TERRY EASTLAND
Scalia said the errors in the Court’s decision in Windsor “spring forth from the same diseased root: an exalted conception of the role of this institution in America.” He seized on Kennedy’s description of the Court’s role in determining the constitutionality of a law as “primary,” and also on Kennedy’s worry that if the Court lacked the power to decide Windsor, then the Court’s role would “become only secondary to the President’s.” Scalia was right to call those sentiments “jaw-dropping,” for indeed they constitute an assertion, as he put it, of “judicial supremacy over the people’s Representatives in Congress and the Executive.”
The Obama Justice Department seemingly began playing to Kennedy in anticipation of a case like Windsor when it announced its enforce-and-don’t-defend position in early 2011. Justice said the position recognized “the judiciary as the final arbiter of the constitutional claims raised.” Strikingly, Kennedy criticized the president for his “failure to defend the constitutionality of an act of Congress based on a constitutional theory not yet established in judicial decisions,” even as he gave the president the decision he and his lawyers had contrived.
Windsor has significance for various reasons, but not least for achieving a dubious first. “In the more than two centuries that this Court has existed as an institution,” wrote Scalia, “we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer” (emphasis Scalia’s). But now the Court has decided such a question, having been asked to do so by an administration willing to go to unprecedented lengths to achieve its political goals.
Windsor is at odds with the Framers’ conception of the exercise of judicial power. It is not a power to be used when there is no real controversy before the Court, no real adversaries fighting it out. One can only hope for no more Windsors. But if majorities with loosey-goosey jurisdictional views now begin to emerge as a result of Windsor, we may be in for more jaw-dropping moments, as real damage is done to constitutional self-government.
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