At yesterday’s marriage equality hearing, several of the Court’s conservatives took swipes at President Obama for refusing to defend the unconstitutional Defense of Marriage Act in court. Justice Scalia worried that “we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” Justice Kennedy compared Obama’s actions to President Bush’s infamous signing statements. Chief Justice Roberts, somewhat bizarrely, accused the President of lacking “the courage of his convictions” by saying DOMA is unconstitutional but continuing to enforce it.

But if Roberts and his fellow conservatives don’t like Obama’s decision, they have only one person to blame for laying the groundwork for it — Chief Justice Roberts.

In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact that none of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.

So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
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During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.