Getting Scalia wrong

Daniel Abernathy Web Developer, NRCC
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In two Supreme Court cases announced this week, the Court struck down portions of federal law. Justice Antonin Scalia joined the majority in Shelby County v. Holder, which struck down Section 4 of the 1965 Voting Rights Act. He dissented in United States v. Windsor, however, which ruled Section 3 of the 1996 Defense of Marriage Act unconstitutional.

The opening paragraph of Justice Scalia’s dissent in Windsor includes the following:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

This passage has spawned a parade of bad journalism, accusing Scalia of flip-flopping on judicial review, or of twisting the facts to fit his preferred outcome. The absurd thing about these accusations is that they are premised on Justice Scalia being either extraordinarily stupid or evil. Take Alex Pareene at Salon, who insists that “this decision exposes him for the politician that he actually is.” The only alternative he presents is that this could be a twisted Originalist argument contradicting everything Scalia has written before:

The case could be made that this is sort of the only honest Originalist argument — there is nothing in the Constitution granting the Supreme Court the authority to determine the constitutionality of duly passed legislation, after all — but obviously this argument rather glaringly contradicts every single instance of Scalia voting to strike down a law. Indeed, it contradicts a decision the Supreme Court announced yesterday, in which the conservatives decided that a portion of the Voting Rights Act that they didn’t care for was unconstitutional because they didn’t care for it. But if Scalia wishes to recuse himself from all future cases involving constitutional questions, now that he has determined that Marbury v. Madison was improperly decided, I am not inclined to stop him.

Or take Tommy Christopher at Mediaite, who seems to think that Scalia is simply too dumb to remember what he did in the previous case:

Justice Antonin Scalia made what is probably the most ridiculous statement that will be made about the case, Michele Bachmann notwithstanding. The day after he struck down a law that was passed unanimously in the Senate, and nearly unanimously in the House, Scalia opined that the Court had no right to subvert the democratic will of the people by overturning the hotly-contested Defense of Marriage Act.

Others made similar arguments.

Dashiell Bennett at The Atlantic:

The crux of his argument was that the law — which passed in 1996 — was a legitimate act of Congress, and it’s not the job of the Supreme Court to tell everyone what every single law means. That’s a mistake that “spring[s] forth from the same diseased root: an exalted conception of the role of this institution in America.”

Ryan Grim at The Huffington Post:

When it came to protections for minority voters, Scalia had no patience for democracy, specifically noting that the court should overturn the law because it is too popular to overturn in Congress. But as far as protections for gay and lesbian couples are concerned, Scalia would prefer the court stay away.


Amy Davidson at The New Yorker:

Scalia spends the first few pages complaining about activist judges overruling Congress — an affectation, in a week when he signed on to an opinion throwing out a good part of the Voting Rights Act, that is just boring.

All of these writers took Scalia’s conclusion — that the Court had no power to overturn DOMA — and assumed that was the whole of his argument. But Scalia’s argument was not an attack on judicial review itself. He explains:

[We The People] gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well.

He continues:

For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “an Act of Congress is alleged to conflict with the Constitution.” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party.

In other words, Scalia is not arguing against the Court’s power to overturn legislation. He is arguing that the Court is limited in its ability to do so. It cannot make rulings at will; it cannot even make advisory opinions when requested. The president, for example, could not ask the Court to invalidate an act of Congress without actually filing suit.

Of course, anyone is free to disagree with Scalia’s interpretation of Article III, as the Court’s majority did. But the writers I’ve quoted didn’t do this. Either these writers have very poor reading comprehension skills (if they even read Scalia’s dissent in Windsor), or they have an agenda that involves portraying Antonin Scalia as some sort of villain.

Daniel Abernathy studied international relations at Baylor University. He currently lives in Washington D.C., working as a web developer for the NRCC.