Saturday, June 29, 2013

The Roberts Central Committee

This has been brewing for a couple of days, so it’s gonna be a long one:

You can’t tell me you were surprised by the Supreme Court’s decision in United States v. Windsor. I saw it coming ten years ago to the day, the day AJ Anthony Kennedy issued the majority opinion in Lawrence v. Texas.

Forget for a minute — in fact, forget forever — all progressive triumphalism about being “on the right side of history” or “the inevitability of change”. Let there be one defeat or one setback, and suddenly they’re afraid the toothpaste can and will be put back in the tube.

The fact is, I knew eventually we’d see such a decision because progressives were constantly trying to reassure conservatives that the Lawrence decision would never lead to a right to same-sex marriage. It reminded me too much of Ralph Waldo Emerson’s gloss of the private adventurer: “The louder he talked of his honor, the faster we counted our spoons.”

The fact is, I knew eventually we’d see such a decision because progressives are impatient consequentialists: they want to win now, and aren’t fussy about how it’s accomplished. Besides, things that progressives have said in the past lead me to suspect that progressives would prefer a central committee made up of right-thinking people rather than any truly representative form of government.

The Roberts Court is now as close to being that central committee as any non-communist government can have. The problem is not simply that, as in Lawrence, Roe v. Wade and many other cases, the Court’s decision is sloppily reasoned due to being driven by an agenda rather than the case’s merits. Rather, as AJ Antonin Scalia’s dissent points out, Windsor should not have come before the Court at all. In its rush to strike down DOMA, the judiciary stepped out of its jurisdiction.


Article III, Section 2 of the Constitution extends the judicial power of the Supreme Court to “Cases” and “Controversies”, mostly in an appellate jurisdiction but holding original jurisdiction “[in] all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”. Another way to put it is that the Constitution does not give the Court power to render binding opinions where there is no case or controversy. As Scalia put it, “Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint.”

When the Obama Administration dropped its case at the circuit court level and agreed with the appellant, Edith Windsor, the controversy functionally ended, and the District Court for the Southern District of New York had all the authority it needed to compel a refund of the taxes no longer owed. Had the courts sustained the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) in their motion to enter the suit as of right, then there would have been a controversy they could rightfully adjudicate. Once BLAG was denied standing, however, everything that happened from that point on was meant to sustain the illusion that a live case needing a judicial ruling still existed.

The ability to determine the constitutionality of laws is not a primary function of the judiciary; in fact, it isn’t even mentioned in the Constitution. Rather, it’s a secondary function the courts properly exercise only in the resolution of disputes, and only when the constitutionality of the statute is one of the issues in dispute. The courts aren’t empowered by the Constitution to create disputes out of thin air solely for the purpose of judicial review.

The holding itself was a hot mess of sloppy, results-first-premisses-to-follow thinking. The substance of Kennedy’s argument is that the states which recognize same-sex marriage have enhanced the dignity and stature of gay couples, and the federal government may not take away that which the state giveth. Although there are some allusions to the equal protection clause of the Fifth Amendment, it’s mostly for rhetorical purposes; the main ground for the ruling is the Tenth Amendment, which devolves to the states those powers not assigned by the Constitution to the federal government, including the power to regulate marriage.

Notwithstanding Kennedy’s appellum ad misericordiam listing of the federal benefits and protections DOMA withholds from gay couples, it still remains that they’re the federal government’s to withhold. For this reason, the appeal to the Tenth Amendment fails: while the states have the power to marry, it doesn’t follow that Congress can’t have its own mind as to who qualifies as married for the federal government’s purposes. Indeed, far from protecting the states from federal encroachment, the majority has made the federal government illicitly beholden to the states in a wide range of federal matters.

The equal-protection argument fails as well. The discrimination argument depends on a psychological sleight-of-hand in which we subconsciously accept the implicit assumption that, if a gay person can’t marry another person of the same sex, s/he can’t marry at all. However, no state or federal law forbids a same-sex-attracted person from contracting a marriage with someone of the opposite sex, nor are SSA-afflicted people inherently incapable of doing so. An SSA-afflicted person may have good and sufficient reasons to not attempt such a marriage; still, that’s his/her choice, not the state’s.

Does this still render gay relationships inferior to straight relationships? The hard truth is, “Yes, and it’s within the purview of the law to say so indirectly by privileging straight relationships over gay relationships.” Lawrence v. Texas pulled a right to consensual sex out of a magic hat labeled “substantive due process”. However, this finding only protected gay sex, not homosexual orientation. (Not everyone who has ever participated in gay sex is homosexually oriented.) More to the point, Lawrence merely made gay sex legal; it did not make gay sex morally praiseworthy or homosexuality psychologically healthy. It put gay sex beyond the reach of law; it did not put gay sex or the Preferred Narrative above criticism. If the states choose to elevate gay relationships to equal status by offering them the option to marry, that’s within their power. If they choose, rather, to privilege straight relationships by restricting marriage to them, then the loss of marriage benefits is the opportunity cost of restricting oneself to gay relationships.

Without denying the utility and occasional necessity of judicial review, we must remember that every time the Supreme Court exercises that power, they do so as an unelected and unrepresentative body whose pronouncements are damn near impossible to overcome. To declare a law passed with the consent of the people unconstitutional and therefore null, as necessary as it may be from time to time, is essentially an anti-democratic measure that frustrates our right of self-government.

The majority’s decision in United States v. Windsor, in Scalia’s best words, was a “jaw-dropping … assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.” They galvanized the corpse of a dead issue just so they could make a private agreement a nationally binding precedent … and in the process brand everyone who disagrees with their enlightened vision as ugly and hateful meanies.

This is not worthy of a Supreme Court of the United States. It’s every bit to be expected, however, of a Central Committee of the Supreme Soviet.