Legal Stuff! DOMA, VRA, and Defending Scalia (which, gross)

One reason I changed the name and tone of this site a bit ago is that, while I have a lot of deeply-held convictions and strong opinions and am way more than happy to share them, I hate the idea that those things define a person, that they compel him to toe a certain line in all instances, that they make all those who disagree, however reasonably, the enemy. “The Cranky Lefty,” in the political meaning of it, might accurately describe my leaning and general disposition, but kind of signifies the opposite of anything I want to be, a myopic and closed-minded crusader who is too busy speaking to listen.

And Oh. My. God were there a lot of cranky lefties on Tuesday and Wednesday of this week.

I mean that in the nicest possible way. By and large, these are my people, and I  agree with them and love them. Like them, I was sad to see the Supreme Court dismantle the Voting Rights Act (though I think they were probably right, or at least on solid ground). I cheered the (temporary, but amazing) victory in Texas and the (permanent, and soon to be followed by bigger) victories for marriage equality with the invalidation of California’s Prop 8 and a very important part of the Defense of Marriage Act. I know that these people mean well, and that their hearts, by and large, are in the best of places.


I’m not okay, usually, with ascribing hidden motives or rank stupidity to people who happen to disagree with me. Sure, sometimes it’s appropriate — I’m quite sure Michele Bachmann and Sarah Palin have nothing of value to offer anyone intellectually, for instance, and I’d never rule out anything regarding Rush Limbaugh’s motives — but by and large, people just believe what they believe (however horrifying it might be to me) and act accordingly. And I guess I’m especially sensitive when it comes to the Supreme Court.

Maybe it’s because I used to be one of them (a conservative, that is, from high school through most of law school). Maybe it’s because I’m a lawyer. Maybe it’s because I’ve met Anthony Kennedy and Clarence Thomas — both on law school outings, nothing to brag about — and found both to be among the most engaging and intelligent people I’ve ever listened or spoken to. I may not think they belong in one of the 10 or 20 most powerful positions in this country (especially not in the latter case), but there’s no question in my mind that they’re sharp people who believe what they say.

The popular target this week (and usually) is Antonin Scalia. And I get it. Every justice on the Court, and probably every justice who’s ever been on the Court, has voted with something of an ideological bent. And Scalia, with his pompous and dismissive writing style and…what I guess I’d call unpredictability, seems to come closest to pursuing an agenda at the expense of actually applying the law. I still don’t think that’s the case, not usually. I have no doubt that Scalia believes what he says, and that the reasons he provides are real, legally defensible (and to him, the inarguably correct) reasons for arriving at those positions. He may be a blowhard, may be out of touch, may be entirely wrong, but he’s not arbitrary or any more a hypocrite than any of the rest of us.

Make no mistake: in the DOMA case of United States v. Windsor (and ten years earlier, Lawrence v. Texas), some of those reasons have involved a basic misunderstanding of human nature and a refusal to accept homosexual individuals as a minority group that needs to be protected: that’s the whole second part of Scalia’s DOMA dissent. Which is ignorant and out of touch, the ramblings of a man clawing ineffectually at his understanding of the world as it slips out of his grasp forever. Rip on that nonsense all you want. It’s ridiculous, and it needs to be driven out of every dark little corner in which it hides.

A lot of the ire, though, is (mis-)focused on the first part of Scalia’s dissent, paired with his joining the majority opinion in Shelby County v. Holder (the voting rights case), to suggest that Scalia applied inexcusably inconsistent logic in striking down one law he didn’t like and voting to uphold another that he did. This showed up on The Daily Show (which summed it up as, to paraphrase: “the difference is, Scalia likes the Defense of Marriage Act and doesn’t like the Voting Rights Act”) and The Colbert Report on Wednesday night, and on many of my friends’ (including lawyer-friends’) Facebook status updates, and is captured in writing most succinctly (and hyperbolically) here.

And it’s mostly bullshit.

Scalia did not vote to suddenly overturn the Voting Rights Act of 1965 because it was old. He voted, rather, to overturn the reauthorization of the Voting Rights Act that occurred in 2006, which locked the originally-temporary law in for another 25 years and yet merely passed along the same criteria that were used in 1965 (and were at that time intended to persist for only five years) to determine to which states the preclearance requirements applied. If a jurisdiction had been in danger of racist election-rigging in 1964, the 2006 reauthorization conclusively presumed that the same jurisdiction was a problem in 2006, considering nothing that had happened in the intervening four decades. So Scalia’s (and the Court’s) decision was not that the fifty-year-old statute was suddenly unconstitutional, but rather that the reauthorization for another 25 years, allowing the federal government to strictly police nine states and not the 41 others, should have required Congress to come up with better reasoning for that unequal treatment than “this is what they decided was appropriate 40 years ago.”

And frankly? Reasonable people can disagree, but I think they were right. I hate the decision on a political and philosophical level, but I think it was legally correct, while Justice Ginsburg’s much more pleasant and agreeable dissent is kind of hard to defend from a strictly constitutional standpoint. In any case, it’s a close question, and dismissing the side you disagree with by claiming they simply ignored democracy in order to benefit Republican candidates or oppress minorities they don’t like is short-sighted and dangerously oversimplifying.

So, first, Scalia’s dissent in the DOMA case on the grounds that the Court shouldn’t overturn “democratically adopted legislation” and was inappropriately enlarging its role did not conflict with his VRA decision, because his VRA decision didn’t represent what his detractors are claiming it did. Second, though, and more importantly, he also wasn’t saying what people seem to assume he was in the DOMA case.

To some extent, this is where Scalia’s self-important and overly broad language gets him in trouble, but it’s also a case of people reading his introduction and nothing else. Scalia felt that the Court lacked authority to decide the case and that the majority was expanding the Court’s role in government, not because the people or Congress voted for DOMA and it should be left alone in favor of majority rule, but because there was no dispute in this particular case for the Court to settle.

And here, he has a pretty good point. The plaintiff in the district court case had claimed DOMA was unconstitutional, and the defendant — the G.W. Bush-led executive branch of our government — strenuously disagreed. By the time the appeal came up, however, a new dude was in charge, and he instructed the Attorney General not to defend DOMA in the courts. So now, both parties to the case agreed that DOMA was unconstitutional. Article III of the Constitution empowers judges to hear “‘Cases’ and ‘Controversies,'” and the moment the government agreed with the citizens that DOMA was unconstitutional, no case or controversy remained for the Court to resolve, so the Constitution gave the Court no right to weigh in. The Court’s job is to resolve disputes between parties, and there wasn’t one.

So if you read his introduction and skim or skip everything else (including the VRA opinion), it looks like Scalia is saying that the people’s will has to be respected with regard to a law he agrees with (DOMA) and should be disregarded entirely with regard to one he dislikes (VRA). But on closer inspection, as is nearly always the case, it’s more complicated than that. Scalia might be all kinds of awful things, but he’s a brilliant lawyer with certain (misguided) convictions, and those convictions quite understandably led him to both the VRA and DOMA decisions.

Attack the bigotry, archaicality and/or basic failure to understand biology that underlies the refusal to treat individuals in same-sex relationships as the minority group in need of protection that they are; attack the hell out of that. That needs to go away, from everywhere, and now. Picking apart his words out of context, though, finding hypocrisy where there is none? That doesn’t do anybody any good.

15 thoughts on “Legal Stuff! DOMA, VRA, and Defending Scalia (which, gross)

    • Sure, yesterday. Hollingsworth v. Perry. Scalia joined the majority opinion, which had the effect of upholding the lower court’s ruling that Prop 8 was unconstitutional, because his constructionist principles convinced him — right in line with his DOMA dissent — that no party had standing to challenge that ruling in the Court. Don’t you think, based on all the anti-gay rhetoric in the second part of the DOMA dissent, that he’d love to be able to take it up and reinstate Prop 8 (as Thomas clearly wanted to)? But he didn’t.

      In most cases, of course, his interpretation (like any judge’s) will line up pretty perfectly with what we can infer are Scalia’s personal and political beliefs. But I don’t think there’s anything inherently dishonest or wrong about that; they’re inextricably linked. Your beliefs about the Constitution and the framer’s intent shape your beliefs about the other issues…or, more cynically but equally understandably, vice-versa. I think he’s wrong — almost always terribly, terribly wrong — but not dishonest or hypocritical.

      • I like that too, and I should read it again. I do think that “textual originalism” is an inherently inconsistent and impossible to follow thing. What I mean is more that…I think he believes he’s following a consistent theory, and I don’t think he makes a conscious decision to apply it or not based on his personal feelings about a particular case. And at any rate, I’d much rather see analysis of why what he says is wrong than speculation over what his motives were in saying it.

      • Forgot about this one…read it in my First Amendment class, I think. Non-prosecution of hate speech and non-aggravation of hate-based crimes are largely conservative issues, of course (or were, back when they were really issues), but there is some pretty broad pro-speech language in there.

  1. Is it fair to write that congress acted after “considering nothing that had happened in the intervening four decades.” ?

    It has been well documented that not only was the VRA nearly unanimously re-authorized in 2006 but that a great deal of time was spent on hearings, witnesses and documentation:

    “Numerous legislators noted that the VRA reauthorization was atypical in terms
    of the amount of resources committed to the process, the number of hearings
    conducted, the number of witnesses presented, and the time dedicated to the

    • Hmm, I couldn’t make the link work. But: the fact that there was this much deliberation and fact finding makes it even stranger to me that they didn’t bother to update the criteria at all. If there are good reasons to keep an eye on the same nine states (and I have no doubt there are), the statute should reflect those reasons, NOT that the Attorney General singled them out 40 or 50 years ago.

  2. Section 4 of the VRA is the section that creates the formula that identifies the jurisdictions that fall under increased scrutiny (and the section that the SCOTUS found fault with) was not left unchanged since 1965. The definitions were changed during re-authorization in 1975. Section 4 also contains the process by which jurisdictions can remove themselves from the increased scrutiny. This process was last changed during the re-authorization of 1982.

    During the lifetime of the VRA the following jurisdictions were able to “bailout” from coverage under the act:

    Wake County, North Carolina – January 23, 1967

    Curry, McKinley and Otero Counties, New Mexico – July 30, 1976

    Towns of Cadwell, Limestone, Ludlow, Nashville, Reed, Woodland, Connor, New Gloucester, Sullivan, Winter Harbor, Chelsea, Sommerville, Carroll, Charleston, Webster, Waldo, Beddington, and Cutler, Maine – September 17, 1976

    Choctaw and McCurtain Counties, Oklahoma – May 12, 1978

    Campbell County, Wyoming – December 17, 1982

    Towns of Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham, Massachusetts – September 29, 1983

    Towns of Groton, Mansfield, and Southbury, Connecticut – June 21, 1984

    El Paso County, Colorado – July 30, 1984

    Honolulu County, Hawaii – July 31, 1984

    Elmore County, Idaho – September 22, 1966; July 31, 1984

    City of Fairfax, Virginia, including the City of Fairfax School Board – October 21, 1997

    Frederick County, Virginia, including the Frederick County School Board the Towns of Middletown and Stephens City; and the Frederick County Shawneeland Sanitary District – September 9, 1999

    Shenandoah County, Virginia including the Shenandoah County School Board, the Towns of Edinburg, Mount Jackson, New Market, Strasburg, Toms Brook, and Woodstock, the Stoney Creek Sanitary District, and the Toms Brook-Maurertown Sanitary District – October 15, 1999

    Roanoke County, Virginia, including the Roanoke County School Board and the Town of Vinton – January 24, 2001

    City of Winchester, Virginia – June 1, 2001

    City of Harrisonburg, Virginia, including the Harrisonburg City School Board – April 17, 2002

    Rockingham County, Virginia, including the Rockingham County School Board and the Towns of Bridgewater, Broadway, Dayton, Elkton, Grottoes, Mt. Crawford, and Timberville – May 24, 2002

    Warren County, Virginia, including the Warren County School Board and the Town of Front Royal – November 26, 2002

    Greene County, Virginia, including the Greene County School Board and the Town of Standardsville – January 19, 2004

    Pulaski County, Virginia, including the Pulaski County School Board and the Towns of Pulaski and Dublin – September 27, 2005

    Augusta County, Virginia, including the Augusta County School Board and the Town of Craigsville – November 30, 2005

    City of Salem, Virginia – July 27, 2006

    Botetourt County, Virginia, including the Botetourt County School Board and the Towns of Buchanan, Fincastle, and Troutville – August 28, 2006

    Essex County, Virginia including the Essex County School Board and the Town of Tappahannock – January 31, 2007

    Middlesex County, Virginia, including the Middlesex County School Board and the Town of Urbanna – January 7, 2008

    Amherst County, Virginia, including the Town of Amherst – August 13, 2008

    Page County, Virginia, including the Page County School Board and the Towns of Luray, Stanley, and Shenandoah – September 15, 2008

    Washington County, Virginia, including the Washington County School Board and the Towns of Abington, Damascus, and Glade Spring – September 23, 2008

    Northwest Austin Municipal Utility District Number One, Texas – November 3, 2009

    City of Kings Mountain, North Carolina – October 22, 2010

    City of Sandy Springs, Georgia – October 26, 2010

    Jefferson County Drainage District Number Seven, TX – June 6, 2011

    Alta Irrigation District, CA – July 15, 2011

    City of Manassas Park, VA – August 3, 2011

    Rappahannock County, VA, including the Rappahannock County School Board and the Town of Washington – August 9, 2011

    Bedford County, VA, including the Bedford County School Board – August 30, 2011

    City of Bedford, VA – August 31, 2011

    Culpeper County, VA, including the Culpeper County School Board and the Town of Culpeper – October 3, 2011

    James City County, VA – November 9, 2011

    City of Williamsburg, VA, including the Williamsburg-James City County School Board – November 28, 2011

    King George County, VA, including the King George County School Board – April 5, 2012

    Prince William County, VA, including the Prince William County School Board and the Towns of Dumfries, Haymarket, Occoquan, and Quantico – April 10, 2012

    City of Pinson, AL – April 20, 2012

    Wythe County, VA, including the County School Board and the Towns of Rural Retreat and Wytheville – June 18, 2012

    Grayson County, VA, including the County School Board and the Towns of Independence, Fries and Troutdale – July 20, 2012

    Merced County, CA, including some 84 other governmental units – August 31, 2012

    Craig County, VA, including the Craig County School District and the Town of New Castle – November 29, 2012

    Carroll County, VA, including the Carroll County School District and the Town of Hillsville – November 30, 2012

    Browns Valley Irrigation District in Yuba County, CA – February 4, 2013

    Towns of Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham’s Grant, Rindge, Stewartstown, Stratford, and Unity, NH – March 1, 2013

    City of Wheatland in Yuba County, CA – April 25, 2013

    City of Falls Church, VA and the Falls Church City Public School District – May 29, 2013


    So once again, I question your premise that the Voting Rights Act was an unchanging, un-reviewed, outdated piece of legislation from 40 or 50 years ago.

    • Huh, I got the text from the wrong source. So the formula was last changed in 1975, not 1965. Oops! Same point stands. Perfectly valid to disagree with it, I’m not even entirely sure I agree with it, but for people to act as though the majority’s decision was standardless and arbitrary is utterly ridiculous.

      “So once again, I question your premise that the Voting Rights Act was an unchanging, un-reviewed, outdated piece of legislation from 40 or 50 years ago.”

      This is not my premise, and I very much doubt it’s anyone else’s.

  3. A Partial List of Total Point-Missers (Promisses No. 11: Stuff is Complicated) – Bill Parker's Personal Bloggy Thing

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s