Justice Scalia Scales New Heights of “Situational Jurisprudence” in DOMA Dissent

Statement of Democracy 21 President Fred Wertheimer

Justice Scalia truly outdid himself in the dissenting opinion he wrote in the DOMA case, decided yesterday by the Supreme Court.  He appears to have perfected the art of “situational jurisprudence.”

Justice Scalia has had no problem voting to invalidate laws enacted by Congress when he is eliminating laws he disagrees with. When Congress has passed laws he dislikes, he has often shown his disdain for providing deference to Congress.

Without batting an eye, Justice Scalia has voted to strike down the nation’s ban on corporate spending in federal elections that was enacted by Congress in 1947, to strike down The Patient Protection and Affordable Care Act that was enacted by Congress in 2010 and, just two days ago, to strike down the operative section of the Voting Rights Act that was re-enacted by Congress in 2006.

But when it came to DOMA, Justice Scalia could not contain his outrage at the Supreme Court for having the audacity to strike down a law enacted by “the people’s Representatives in Congress and the Executive.”  Suddenly, Justice Scalia sees a Court that has “no power under the Constitution to invalidate this democratically adopted legislation.”

Justice Scalia’s new found “situational” deference to Congress can be seen in multiple statements in his dissent in the DOMA case. For example, Justice Scalia said:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. 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.

And then there is this quote from the Scalia dissent:

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.

And then there is this one:

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.

There are many ways to describe Justice Scalia’s role reversal and the dramatic inconsistency in his views about our democratic process and the role of Congress and the Executive in our constitutional system.

‘Jaw-dropping’ is just one word that comes to mind.