The Supreme Court issued two landmark decisions last week. But the way they were decided sets a dangerous precedent.
Unless you were under a rock for the last week you probably heard about the Supreme Court’s high profile decisions on Defense of Marriage Act (DOMA) and the Voting Rights Act. In the case of DOMA the court, in a five to four decision, removed the important parts of the law that prevented numerous federally guaranteed rights and benefits already enjoyed by married folks from being given to same sex couples. The court also threw a challenge about same-sex marriage in California back to the lower federal court ensuring, due to complex legal and political procedure, same-sex marriage in the Golden State. The day before, the Supreme Court removed a crucial provision of the landmark 1965 Voting Rights Act that required a variety of state and local governments, largely located in the South, to get approval from the Justice Department before enacting any changes to their election laws and political redistricting due to their history of racial discrimination in elections.
Political and policy change can often proceed at a glacial pace in our democracy. Just look at how long it took to debate and pass Obamacare, a law that is yet to be fully implemented. But judicial decisions can often have immediate and important effects. Just hours after the changes to the Voting Rights Act was announced the Texas Attorney General announced plans to move forward with a controversial redistricting plan that had been on hold on the grounds that it discriminates against Hispanic voters.
In addition, a number of states will be able to move forward with new controversial “voter ID” laws requiring voters to present photo id’s in order to vote. While voter id laws are often portrayed as a non-partisan effort to limit voter fraud they have been shown to overwhelmingly burden constituencies that tend to support the Democratic Party like poor people, racial minorities and young voters. Republicans in North Carolina have responded to the changes to the Voting Rights Act by announcing plans to end early voting, same day registration, Sunday voting and require photo id’s in order to vote. In short, the court’s ruling last week will pave the way for voting to get a lot harder in North Carolina potentially having a major effect on the battle ground state’s electorate.
In addition to these adverse effects the rulings themselves seem to raise two troubling trends in my mind in how the court seems to be operating these days. First of all we seem to be living in an era when all sorts of legal questions that get to the heart of what kind of country we will be are being decided by the slimmest of possible majorities. From same sex marriage and voting this year, to our nation’s healthcare system last year, we’ve seen a court that doesn’t shy away from making profoundly important decisions based on which side can round up five votes. This is in no way the natural state of the Supreme Court. Indeed, the landmark Roe v. Wade decision that legalized abortion was enacted by a seven to two majority. While there is no Constitutional difference between a decision with a large majority and a decision with a small one I’d argue there is a symbolic difference when deciding over a controversial issue. The Supreme Court remains a relatively popular institution, compared to say Congress with its approval ratings in the teens, but a court that continues to issue landmark ruling over controversial issues with the barest of majorities could see that change in the future.
Secondly, it appears that the complex legal and philosophical arguments that the Supreme Court is supposedly wrestling with during their long deliberations seem to be taking a back seat to regular old political expediency. The issue of federalism, our constitutional system of dividing power between the federal and state bodies of government, is a classic example of this. Where federal power ends and state power begins has long been a question the Supreme Court has worked to address. But as Kevin Drum pointed out last week basically no one on the court seems to care about federalism any more. Four conservative justices that voted to gut the Voting Rights Act in the name of states’ rights and federalism then turned around the next day and voted to let the Federal Government refuse to recognize lawful same sex-marriages performed by state governments. Considering the fact that marriage has always been a state issue, the legal acrobatics that allow conservative justices to champion federalism one day and then discard it a few days later calls into question the idea that the Supreme Court bases it’s decisions on complex arguments by great legal minds. Indeed it does sometimes look like justices are just to grabbing hold of any argument they can make to enact the public policy they’d like to see. And that is no way to run a court.