Making Sense of DOMA Part #2 - On The Nature of the Supreme Court

OK, so in the last post we laid the groundwork for understanding this case, to some extent. If confusion remains, well, that’s part of the problem here. The Supreme Court is confused as well. Some of the Justices don’t understand the legality of the BLAG, or the middle position of the president who sees DOMA as unconstitutional but still chooses to enforce the law. Chief Justice Roberts went so far as to call the president a coward, or someone who lacked conviction, so confusion is built into this case. But where does all this confusion come from? Let’s go back to our initial question, why is the court getting bogged down in apparent technicalities and not just deciding on this historic issue?

This frustration with the Supreme Court is a historic frustration that dates back to the inception of the court. It asks the most basic question about the court i.e. what actually is the purpose of the court? You would think this is an easy question. We generally know the purpose of the executive and legislative branches, but the judicial branch is considerably murkier in its nature. (Think about it. The President and Congress play active roles, while the Supreme Court only reacts...) The first court, though symbolically important, was largely a lame duck court because of this uncertainty, and because of ambivalence about the power of the court. Eventually, the court grew more stable and solidified its power, and then the biggest question facing the court was the power of judicial review.

Judicial review gives the court power to decide on the constitutionality of an act of the president or congress. Though now essential to the nature of the court, this power isn’t explicitly given in the constitution. Rather, as Alexander Hamilton first argued, and then Justice Marshall made famous, judicial review is inherent within the nature of the constitution. The Constitution, as a code of law, is the highest law in the land. Any subsequent laws that are created which violate the constitution must be invalid because this subsequent law only receives its power from the constitution. In other words, as Hamilton argues, you can’t have a servant more powerful than the master. Or to put it in more contemporary terms, it’s as if the boss delegated power to an intern, and that intern used that power to undermine the boss, which doesn’t work.

 But who decides on the constitutionality of the law? Congress cannot because they make laws, and the president cannot because he enforces the law. Considering the need for a separation of power, only the court can hold this singular power. Fine, but shouldn’t judicial review allow the court to pass judgment on any and all laws they want, why the need for complication? Isn’t this there purpose, to protect and explain the constitution in each new generation?

On a similar note, wouldn’t it be much more useful for the court to serve in an advisory role so that even before laws are made, a president or congress receives the opinion of the court? The Justices throughout history, starting with the first court, decided that the disadvantages of this advisory role outweigh the immediate benefits. In a little piece of not well-known history, Bernard Schwartz reminds us that:

The very first Court felt constrained to withhold even from the “Father of his Country” an advisory opinion on questions regarding which Washington was most anxious to have illumination from the highest tribunal. In 1793 President Washington, through a letter sent to the Justices by Secretary of State Jefferson, sought the advice of the Supreme Court on a series of troublesome “abstract questions” in the realm of international law “which have already occurred, or may soon occur.” Chief Justice Jay and his associates first postponed their answer until the sitting of the Court and then, three weeks later, replied politely but firmly, declining to give the requested answers.
According to the Justices’ letter to Washington, both “the lines of separation drawn by the Constitution between the three departments of the government . . . and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to.”

This story highlights two important and often misunderstood aspects of the Court. First, the court was always seen as a last resort. We tend to forget that in our desire to create change. Second, it highlights the important limitation that the court can only decide legal cases.

But what does that mean that the court only uses judicial review in legal cases? Aren’t all cases legal? Not really. All cases can have legal consequences, but not all cases are necessarily "legal" in this sense. The founders established that a legal case is one that has “case or controversy,” which later theorists established a three-prong test to determine: injury, request for redress, and a real potential for the court to redress the injury. This means that the Court would only hear a case that has a real injury i.e. I am appealing a case in which I lost money, and a real request from that party to redress the injury, and only cases in which the court can actually do something. In grounding the Court’s limitations in concrete legal cases and not abstract or political cases, the early Justices kept the separation of powers intact.

Why is this so important? As usual, it all flows back to the foundation of separating powers. The early Justices realized that it was imperative that the court not have political power i.e. the power to veto a law, that court not be involved in the making of laws. Think of the alternative. Imagine the Supreme Court could just choose to pass judgment on any law they want to, or imagine that the President or congress, if they don’t like a law could just push the law into the Supreme Court. This would not only give immense power to the court in that they can stick their hands in any case they want, but would blur the line between the powers. If the president or congress is unhappy with the other branch’s decisions they could simply take every case to court.  Not only would this clog the court, and involve the court in the making of the law, but it would also take away power from the people, which is a crucial component to how laws are made.

Yet, as we can see in the DOMA case, this position also comes with downsides. It’s no mistake or act of cowardice that the President, despite the fact that he disagrees with DOMA, is still appealing to the Supreme Court as an injured party. The president wants the court to rule on the case, but realizes there exists little legal recourse to do so, ironically, because most lower courts would overturn DOMA.

Now, the court faces a choice between two of its different jobs. It needs to protect the constitution, but it also needs to protect the process of law and the integrity of the court. You can also think about this distinction in terms of short terms and long-term goals. As many note, even the more conservative justices appear ready to view DOMA as unconstitutional, but given what we’ve discussed they don’t necessarily see it as within their abilities to do so in this case. Now that sounds misguided and even stupid, no? And if you think of it in this limited context, it is stupid. It’s essentially letting a murderer get off on a technicality. Yet, if you think of it in the long-term consequences of this case, it’s portrays a perennially tough decision. If the court does decide to rule on the constitutionality of this case, then it sets a precedent that potentially goes against the nature and history of the court. If the court allows a case to go through with no real party, no real injury, and no real request of recourse, then it opens the floodgate to a breach in the separation of powers. So while people might feel frustrated with the traffic in this case, you need to factor in the long-term precedence.

Why does that matter? Because though you might urgently care about the DOMA case, you wouldn’t want the court to have this unprecedented power in a case you might disagree with. (This is always the trade off. Roe V. Wade is celebrated by pro rights groups, but pretty much all legal theorists etc. see it as a terribly argued and decided case where political expedience won over legal prudence.) Moreover, different courts take different approaches to the proactive methods of the court. Some courts take on extremely active roles that many see as undermining the purpose of the court, and others take on a more passive role and let the society decide the questions. We can see this latter approach in this case. As many have noted, the social question of same-sex marriage appears largely decided. Society is turning more and more to embracing the issue. The court approves of this bottom up approach to changing law because it sees itself as the last resort. It would always rather that the people actually decide these cases, than the court, because the government is a tool of the people, not a tool imposed upon the people.

Now, this approach can and often does slow down change in a society, but it also stabilizes the change. So again, Justices need to choose between stability and change, between the exigency of this specific law vs. the precedence it creates. There is rarely, if ever, a case of a simple black and white question of constitutionality.

To move into more explicit opinion mode, I consequently think that calling this court politicized, or cowardly is misguided. Reading through the briefs and oral arguments, it’s hard to see these justices, yes, even the often homophobic Scalia as anything but people who deeply care about the constitution. Justice Louis Brandeis once famously said that what the court doesn’t do is as important, if not more important, that what it does do. And while some of us might want the court to take a more active role in deciding the important issues of our day, historically, that is a dangerous role for the Court, one with many negative and destabilizing consequences. In a time in which our default is to mistrust politicians, I feel an odd sense of trust in this court, which might be naïve. These are many of the same people who decided Citizen’s United, but at least in reading the oral arguments and other statements, I still feel an abiding trust in their integrity. In a time in which politics is undermined by a natural cynicism, it’s nice to feel this sort of naïve trust in our officials.