Justice Scalia Hates Judicial Review, Except When He Doesn't

Dashiell Bennett
Justice Scalia Hates Judicial Review, Except When He Doesn't

Earlier today, Justice Antonin Scalia wrote a scathing dissent to the decision to strike down the Defense of Marriage Act, saying "we have no power under the Constitution to invalidate this democratically adopted legislation." So why was it okay to take apart the democratically adopted Voting Rights Act just one day earlier?

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Scalia's DOMA dissent was a blistering and angry on most of his fellow justices and their "legalistic argle-bargle." He even went after Samuel Alito, who voted on his side. 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." There was more:

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

Yet, the Voting Rights Act, which has been in effect continually since 1965 and was re-authorized in a landslide Congressional vote just seven years ago (ten years after DOMA), needed fixing — and it was up to the Supremes to fix it. Keep in mind, Scalia did not write the deciding opinion in the Voting Rights Act case that was handed down on Tuesday (Chief Justice John Roberts did), but he signed on to it, meaning he agrees with it what it says. If he didn't he could have written his own dissent.

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Yesterday, there was no such worry that they were overstepping their bounds or (as Scalia would write about DOMA) that the Court would "create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws." But somehow there was "no valid reason to insulate the coverage formula from review" at the hands of nine justices. Hence no more Section 4 of the VRA.

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Check out more of what Scalia wrote today about DOMA vs. the majority opinion issued one day earlier about the Voting Rights Act.

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This image of the Court would have been unrecognizable to those who wrote and ratified our national charter.


Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks tocurrent conditions.


The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” ... giving the Supreme Court the “primary role in determining the constitutionality of laws.” 


As we put it a short time ago, “the Act imposes current burdens and must be justified by current needs.”


I think that this Court has, and the Court of Appeals had, no power to decide this suit. ...

declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free-standing role at all.


[Congress's] failure to act leaves us today with no choice but to declare §4(b) unconstitutional.

So it seems what's good for one law isn't necessarily good for the other. Now that's some argle-bargle.