The DOMA and Prop8 decisions bother me, even though I am happy about their outcome.
The thing is, I feel like the current Supreme Court is, for lack of a better term, lawless. I don’t mean that they have a theory of contitutional interpretation that I happen to disagree with, the way I disagree with the “substantive due process” philosophy that almost undid the New Deal. I mean that they are operating without a theory: instead, they know who they want to win in each case, and then they come up with some constitutionaloid argument for that case.
Maybe I am just overly nostalgic about previous generations of Supreme Court justices, but I think it’s telling that in the VRA decision, as in Bush v. Gore, the majority basically said that their ruling was narrowly tailored to the specifics of the case and couldn’t be used as a precedent. Republicans and Democrats could spend the next year negotiating over a new preclearance formula, publish thousands of pages of findings, and pass a law... and it would get litigated all over again, and God only knows if it would get struck down again.
So the DOMA and Prop8 decisions don’t feel to me like “the Supreme Court is recognizing the constitutional rights of same-sex couples”, but rather “Justice Kennedy doesn’t want to tell his gay friends in California they can’t get married and can’t get Federal benefits, but he doesn’t want to make same-sex marriage legal in all fifty states, either”. Which is still an improvement on the status quo, but... doesn’t make me feel better about the Court. Maybe if Justice Kennedy had African-American friends in Alabama....
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The thing is, I feel like the current Supreme Court is, for lack of a better term, lawless. I don’t mean that they have a theory of contitutional interpretation that I happen to disagree with, the way I disagree with the “substantive due process” philosophy that almost undid the New Deal. I mean that they are operating without a theory: instead, they know who they want to win in each case, and then they come up with some constitutionaloid argument for that case.
Maybe I am just overly nostalgic about previous generations of Supreme Court justices, but I think it’s telling that in the VRA decision, as in Bush v. Gore, the majority basically said that their ruling was narrowly tailored to the specifics of the case and couldn’t be used as a precedent. Republicans and Democrats could spend the next year negotiating over a new preclearance formula, publish thousands of pages of findings, and pass a law... and it would get litigated all over again, and God only knows if it would get struck down again.
So the DOMA and Prop8 decisions don’t feel to me like “the Supreme Court is recognizing the constitutional rights of same-sex couples”, but rather “Justice Kennedy doesn’t want to tell his gay friends in California they can’t get married and can’t get Federal benefits, but he doesn’t want to make same-sex marriage legal in all fifty states, either”. Which is still an improvement on the status quo, but... doesn’t make me feel better about the Court. Maybe if Justice Kennedy had African-American friends in Alabama....