“This is jaw-dropping,” balked Justice Scalia. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive.” But while fellow dissenter Chief Justice John G. Roberts went out of his way to disassociate their arguments from any ideological support for the statute, these justices have not historically demonstrated the same restraint they cling to here:
1. The Affordable Care Act
In last year’s final Supreme Court ruling, three of the four justices who dissent today were prepared to repeal in its entirety a duly passed piece of legislation on the basis that it exceeded Congress’ authority under the Commerce Clause and other provisions of the Constitution. This is so even though nearly 200 years of precedent establish that there is “no sort of trade” that Congress cannot regulate and that lawmakers have “full power” over interstate commerce. And while Scalia distances himself from “society’s debate over marriage,” he was more than happy to parrot political talking points in harsh questioning of the Affordable Care Act.
2. The Voting Rights Act
Just yesterday, these same nine justices sat in their same seats and issued another landmark opinion about discrimination. In that one, the statute at issue protected against discrimination rather than perpetuating it. And in that opinion, all four dissenting justices plus Justice Kennedy had no trouble finding that a 50-year-old statute reauthorized less than a decade ago with overwhelming support should be invalidated with the wave of their wands.
3. Citizens United
The notorious Roberts Court ruling that bred a movement against the characterization of corporations as people didn’t just give corporations unfettered rights to spend on politics. The court’s five conservative justices also struck down what was at the time a 63-year-old ban on corporate money in federal elections, and reached out to hold a major provision unconstitutional on its face, even though that argument was not raised by the litigants.
4. Human Rights
A 200-year-old statute that provides a forum in U.S. courts for the most egregious human rights abuses lost most of its potency this term, after a five-justice majority eviscerated its application outside the United States, with Justice Roberts writing for the majority that the United States should not be a “uniquely hospitable forum for the enforcement of international norms.”
5. Workers’ Rights
In two other decisions this week overshadowed by a punt on affirmative action, the five conservative justices stomped on workers’ rights by imposing judge-made misinterpretations that pervert the laws’ intent to protect employees. In one, the justices rejected the definition of “supervisors” established by the Equal Employment Opportunity Commission to impose their own exceedingly narrow definition that effectively insulates employers from many harassment challenges under the law. In the second, those five justices misappropriated a statute intended to protect employees from retaliation and “turned it into a measure reducing the force of the ban on retaliation,” as the dissenters explain.
Even the dissents in today’s DOMA decision were not free of policy judgments cloaked in judicial minimalism. Justices Samuel Alito and Clarence Thomas worried that judges should not weigh in because, “[a]t present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.” And Justice Scalia wrote, “to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.”