Amid all of the hyperbole on both sides of the same-sex marriage debate in the wake of the Court’s ruling in U.S. v. Windsor, one of the most interesting legal aspects of the case has gone unnoticed. While Justice Scalia’s dissent (found here, starting at page 34 of 77) gained some traction in conservative circles for calling the majority opinion “legalistic argle-bargle” and accusing the majority of portraying opponents of gay marriage as “hostes humani generis” (that is to say, “enemies of the human race”), the real thrust of his legal argument has largely been ignored. Perhaps this is partially because questions of legal standing require an intermediate level of understanding of how the Supreme Court operates, while most political commentators and armchair critics of the Court have only an elementary understanding. But I think part of it also has to do with the fault that “conservatives” are often just as guilty of misunderstanding the role of the Court in the way Scalia describes.
Scalia argues that, since there was no legal controversy at stake- inasmuch as the Department of Justice and the plaintiff both were seeking the same result and the plaintiff’s legitimate financial injury had been cured by the lower court’s ruling- the Supreme Court had no standing to hear the case at all. Since the Court has been empowered by the Constitution with the “Judicial Power” to decide “Cases” and “Controversies” that arise before the Court, the Court must restrict itself to actual legal controversies and not cast itself as the branch charged with “answering” any and all constitutional questions. Viewed in this light, the “case” of United States v. Windsor seems to have been, at best, a manufactured controversy by the time it reached the Supreme Court, however much it may have been hotly contested at its inception.
In addressing the conditions under which the Court can review a law’s constitutionality, Scalia writes that:
“We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. 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”…. In other words, 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. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us.”
In analyzing this legal argument, I will go ahead and admit, first off, that I am no legal expert. I will also go ahead and admit that I am not usually a big fan of Justice Scalia. I believe that he, like every other member of the Court, is willing to twist the plain meaning of the text of the Constitution to fit his own political objectives. That being said, I think he is absolutely right in this case. Not on policy grounds, necessarily, but certainly on legal grounds.
Admittedly, this quibbling over whether a case is adequately disputed might seem rather trivial to those who assume the predominant modern view of the role of the Court in the U.S. constitutional framework. If the Court is charged with being the final arbiter of all constitutional questions, then restricting it to answering actual legal “cases” and “controversies” seems to pointlessly impede the Court in performing its most indispensable function.
On the other hand, if the function of the Court is merely to be the chief judicial body, as the wording of Article III would imply, then it is perfectly reasonable to expect the Court to restrain itself from weighing in on any constitutional questions beyond the scope of the particular legal controversy immediately before it. For one thing, expecting it to be the final voice on the constitution turns it into a political, as well as judicial, organ. Furthermore, our current method of conflating the two roles of “judicial authority” and “pseudo-constitutional policy makers” is not philosophically coherent and often lends itself to bad policy. The foundation of our legal system is based upon the ideal of a cold, impartial application of the law; introducing the roles of policy expert, legislator, and ethical philosopher can only serve to muddle the judicial process.
Acknowledging the judicial nature of the Court does not diminish the Court’s ability to strike down unconstitutional laws. In fact, the case of Marbury v. Madison which established judicial review remains a prime example of the type of legal controversy that the Court was meant to resolve. And if, in deciding a case, the Court should determine that an act of Congress goes beyond that branch’s constitutionally-proscribed boundaries, it certainly seems a legitimate use of the judicial power to declare that act null and void. But this cannot be the Court’s primary function. For if the Supreme Court is restricted to only addressing “cases” and “controversies” before it, then expecting it to somehow simultaneously manage to be the final, authoritative voice on any and all constitutional questions raises serious logistical questions. To expect this much from the Court would be wholly unrealistic and, if we take the language of Article III at face value, wholly opposite from the intention of the Framers.
Who, then, is capable of answering constitutional questions? I would posit that this function was meant to be shared by the three coequal branches of the federal government, as well as by the sovereign states that created that government as their agent. Admittedly, this solution does not give itself as easily to definitive, top-down solutions, but perhaps it shouldn’t. After all, how many Americans would trust the President or Congress to be the final interpreter of the Constitution, and in so doing provide a constitutional check on themselves? Why should we not limit the Supreme Court in the same way? Under such a polycentric system, the process of determining the constitutionality of an Act of Congress (or a decision by the Court, for that matter) will of course be a political one, but let’s not kid ourselves: so is the Supreme Court’s current method of deciding cases.
Hopefully by separating the Court’s political function from its judicial one, we can at least preserve the dignity of the latter. Until then, we’ll continue to get “legalistic argle-bargle” with an eye toward a particular policy objective. Since that seems to be what parades itself as “law” these days.