No, I am not writing about gay divorce in the wake of the marriage cases. I am writing about this Supreme Court’s vision of the separation of powers, and the Court’s conflcting decisions in the Voting Rights Act case decided on Tuesday and the DOMA case decided on Wednesday. What a difference a day makes.
On Tuesday, the Supreme Court, in a 5–4 decision in Shelby County v. Holder written by Chief Justice John Roberts, struck down Section 4 of the Voting Rights Act of 1965 , which provided a preclearance formula for monitoring voter suppression efforts by states or local governments. Roberts’s decision may be paraphrased this way: “I warned you, Congress, in the Austin case four years ago, that I believe the decades-old preclearance formula is no longer relevant, but you didn’t listen to me. Now you will.”
And with that, he and a majority of the Court — including Justice Antonin Scalia — gutted nearly a half century of progress in the civil rights arena designed to remedy the failures of Reconstruction. Contrast that destructive judicial activism with Scalia’s dissenting opinion — only one day later — in yesterday’s DOMA case, in which he wrote, “. . . we have no power under the Constitution to invalidate this democratically adopted legislation.”
It would seem Justice Scalia has confused the Court’s responsibility to protect civil rights under the Constitution with his own predilection for usurping them. Lady-friendly Sam Graham-Felsen summed it up perfectly yesterday, when he tweeted, “Trying to picture a scale in Scalia’s brain. Sadder that gays won rights or happier that blacks lost them?”