“Will the real Justice Scalia please stand up, please stand up.” These slightly altered lyrics from Eminem’s 2000 hit "The Real Slim Shady” kept running through my head as I read Justice Antonin Scalia’s stinging dissent to the Supreme Court decision striking down the Defense of Marriage Act.
In his dissenting opinion, Scalia passionately argued that the court should defer to the democratically elected Congress that passed DOMA and, thus, not strike down the law. But here’s the odd thing: in a decision rendered just one day earlier, Justice Scalia had voted to strike down portions of the Voting Rights Act—also passed by our democratically elected Congress.
Could there be two different Justice Scalia’s? Almost like a judicial version of Dr. Jekyll and Mr. Hyde. There’s the well-mannered Dr. Jekyll, who views congressionally enacted laws as being worthy of great deference. And then there’s the ill-tempered Mr. Hyde, who boorishly lashes at any law he does not like.
I’m not a doctor (although technically I do have a Doctor of Laws), but could Justice Scalia have a split personality? I’ll let you make the call.
Here’s what Justice Scalia wrote in his DOMA dissent: “We have no power under the Constitution to invalidate this democratically adopted legislation ... 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…”
That Scalia could not be more clear. The United Supreme Court should tread lightly before striking down laws enacted by our democratically elected officials. You may agree or disagree, but you know exactly where he stands.
But then there’s the other Scalia—the aggressive, activist Mr. Hyde, who appears at times to take control. Does this involve mind control? A potion? I don’t know, but what I can tell you is that this judicial beast was on full display just a few days earlier, when Scalia joined the 5–4 majority that struck down Section Four of the Voting Rights Act.
And just to be clear, the Voting Rights Act was reauthorized in 2006 by overwhelming majorities in both houses of Congress. In fact, it passed the Senate with a vote of 98–0 before being signed into law by President Bush.
As Justice Ginsberg pointed out in her dissenting opinion to the decision, the reauthorization of the Voting Rights Act was not taken lightly. It was done after Congress held extensive hearings on whether the law was still required to protect the voting rights of minorities.
What did Congress find? That the Voting Rights Act was even more utilized in present day than years ago: “There were more DOJ [Department of Justice] objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).”
But this is far from the only time Scalia’s Mr. Hyde has reared his grotesque head. We also saw it in the infamous Citizens United decision. There, Justice Scalia joined the majority to strike down parts of the Bipartisan Campaign Reform Act of 2002, commonly referred to as “McCain–Feingold.” This decision struck down the federal laws that had prohibited corporations and unions from making independent expenditures to influence elections, helping to pave the way for super PACs and other Democracy devouring monstrosities.
You don’t get much more of a democratically enacted piece of legislation than one that has the word “bipartisan” in its title. Plus it was passed by healthy majorities in both chambers of Congress. I have no doubt that Scalia’s Dr. Jekyll would’ve deferred to Congress on that one. But unfortunately for us, the devilish Mr. Hyde was in charge in that case.
And just last year Scalia’s Mr. Hyde was on the loose when the Supreme Court considered the constitutionality of “Obamacare.” In this case, Scalia joined the dissent in arguing that the Affordable Care Act should be found “invalid in its entirety.” So much for deference to Congress.
So which of these two judicial creatures is the real Justice Scalia? I think the only one who can answer that is Scalia. Or does even he know?