The Court’s Inconsistant Week and the Strengthening of Hamiltonian Review

 

The Court’s Inconsistent Week and the Strengthening of Hamiltonian Judicial Review – The Supreme Court’s VRA and DOMA decisions conflict with one another yet simultaneously strengthen the power of the State and the “letter of the law” school of judicial review

-Christopher Carroll

 

 

This past week, the Supreme Court was dangerously inconsistent in the way it treated the rights of minorities and the marginalized, it’s relationship with Congress. The emphasis placed upon a Hamiltonian “letter of the law” style of judicial review and the underscoring of the legislative power of the States and government, comes at the expense of individual citizens.

The Court found a way to act extremely conservatively, even while handing down a traditionally liberal decision. The strengthening of Hamiltonian style of judicial review, one where the letter of the law rather than interpretation of the law  is paramount in Court decisions should strike fear in those who hope to see emphasis place upon the rights of individuals, rather than the rights of the state.

The Court’s decisions on the Voting Rights Act, Defense of Marriage Act and Proposition 8 were remarkable, both for what they had in common and for what they didn’t.  All three decisions were remarkably activist, placing the Court well into the traitorous political tides of American domestic policy.  All three decisions concerned the unequal treatment of marginalized citizens. All three decisions lent substantial respect to the sovereignty and rights of the States. However, the Court was inconsistent in its treatment of the rights of individuals and in their relationship with Congress.

The VRA decision was extremely nuanced. The Court struck down an integral portion of the law, arguing that though the bill itself is not unconstitutional and has even been, in the words of Chief Justice Roberts, extremely effective, the guidelines are outmoded and unfairly discriminate against states that have, in the estimation of the Court, sufficiently addressed the discrimination that marked the period before the bill was enacted.

Protect the Voting Rights Act rally at the SCOTUS (Photo credit: SEIU International)

By striking down section 4 and deferring to an incapable Congress, the Court has effectively killed the entire Act, knowing that the chances that Congress agrees to new guidelines are extremely remote. Slimmer than the chances that the Chicago Cubs win this year’s World Series.

In doing this, they have enabled themselves to kill an unpopular bill among the GOP faithful under the legitimate pretext of protecting State’s rights and respecting Congress’s constitutional obligations and responsibilities.

The DOMA and Proposition 8 decisions were quite different. The cases themselves could have been approached much the way that the preceding VRA case was. The Court could have deferred to the law passed by Congress and a democratic President. The Court could have refused to rule on the cases, instead claiming that the plaintiffs did not have standing. Instead, the Court was able to strike a perfect balance between State and individual rights, while simultaneously rejecting past Congressional action and removing power from them.

As I wrote last week, the Court could have done serious damage to the progress towards marriage equality seen over the last decade. Had they gotten far in front of the nation, the resulting repercussions and conflict could have permanently damaged the movement, much the way Roe v. Wade has damaged a woman’s right to abortion in this country.Though the Court’s failure to assert that the marriage equality is a Constitutionally protected right has been poorly received by some,  the restraint shown by the Court is what makes the decision strong and inconsistent with the VRA decision just days before. By only giving federal rights to those couples legally married and letting the States arrive at marriage equality in due course, they have struck a balance between individual rights and state rights that was not accomplished in the earlier VRA decision.

The Court’s inconsistency in it’s treatment of both individual rights and of Congress, and its consistently conservative treatment of state rights, should dictate how issues are brought before them and how marriage equality activists should attempt to effect their agendas. Regardless of the issues at hand, in this political climate and with this conservative Court, the battles must be fought in the State legislatures. Today’s Court is far from socially activist or liberal, but is instead extremely conservative in it’s treatment of federalism, though is increasingly becoming more socially liberal within it’s conservative framework.

Alexander Hamilton. (Photo credit: Wikipedia)

In the end, the DOMA and Proposition 8 cases, though making liberals happy, represent a strengthening of the conservative ideology of today’s Supreme Court, strengthening Hamilton’s “letter of the law” vision of judicial review and weakening former Chief Justice Warren’s. Whether that is a good or a bad thing depends on your opinion about the place a Supreme or Constitutional Court should hold in society. There are pros and cons to both schools of thought, but the marginalized in our society should be weary, especially when oppression and popular public opinion coincide.