Friday, June 28, 2013

The Supreme Court Decisions on DOMA, the VRA and a Call for Critical Thinking

This week the Supreme Court struck down the Defense of Marriage Act (DOMA) and Section 4 of the Voting Rights Act (VRA). Many people were excited about the decision on DOMA and terribly disappointed that the court struck down the VRA. In all of that emotion many people fail to comment on the legal reasoning applied in the cases they are just angry that the court 'gutted the voting rights act' and proud that the court 'stood up for gay rights'.

The reason people feel this way is based on how they view the court: that the Supreme Court is a moral arbiter weighing in on key issues. Ideally I would like to quickly point out how the function of the Supreme Court is to weigh in on specific cases and determine constitutionality of those cases that are brought before it. Historically that has been the purpose of the Supreme Court but people today (mostly liberals but some religious conservatives too) often just want the court to make 'the right' ruling instead of constraining itself with constitutionality.

Antonin Scalia makes a pretty convincing case that Justice Ginsberg is doing just this in her opinion on DOMA. He argues that the Court should not make a ruling because the plaintiff has no standing in the case because she won in a lower court and that without standing the Supreme Court should not rule. He chides Justice Ginsberg for stating that the Court may rule whenever they think it is 'prudent' or as he puts it 'a good idea' even though this means ignoring Article III of the Constitution.

Sadly this idea of ignoring the Constitution to do what we believe to be 'morally right' and expedient is an idea that is popular with the people; so long as those rulings themselves are popular with the people. As a result we have seen cases since the New Deal that redefined what the constitution meant and gave broad almost unlimited powers to congress that were not there before.

In Wickard vs. Filburn the Supreme Court ruled unanimously that the government could regulate the amount of wheat grown on an individuals farm even if he was not selling it to anyone under the 'interstate commerce' clause of the constitution. By redefining interstate commerce to mean 'all commerce' the Supreme Court has handed Congress a near blank check to regulate all business any way that it sees fit. 60 years later when a man grew medicinal marijuana on his own property for his own consumption his plants were destroyed and the Supreme Court ruled in Gonzales vs. Raich that once again the commerce clause of the constitution gives Congress that authority.

What I sincerely hope people would do with this week in light of the major rulings by the Supreme Court is to read them (or at least their summaries) and engage in some real critical thinking about how our court should function, and what legal principles do we want our court to apply. Do we want our court to constrain themselves to the constitution and apply it the best they can or do we want them to be moral arbiters ruling in favor of 'what they feel best' and having to contort constitutionally to justify themselves.

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