For years, the third branch of our federal government has enjoyed more public esteem than its executive and legislative counterparts.
Darn if the Supreme Court doesn’t insist on being co-equal, by lowering itself to the others’ level.
In what has become an annual rite of late June, the nation’s high court let anticipation build for weeks before releasing its highest-profile rulings in a matter of days. This past week we learned the fate of an affirmative-action case from Texas (the court punted), the Voting Rights Act of 1965 (the court struck down a section of it, albeit a different one than most people expected), and not one gay-marriage case (the court justices struck down part of the Defense of Marriage Act of 1996) but two (the court punted again in a California case, but with possible repercussions on future, unrelated cases).
This approach — hurry up and wait, then hurry up again — has come taken on such a dramatic air in large part because of the court’s unpredictability. It threatens the court’s very credibility.
This unpredictability looms over every high-profile case — and not only because the highest-profile cases deal with thorny constitutional questions on which each side has legitimate points, though that’s certainly true.
Consider the consistency and inconsistency on display at once between Tuesday’s VRA ruling and Wednesday’s DOMA decision.
On one hand, the VRA case turned in large part on a five-justice majority’s respect for state sovereignty in setting election laws, while the DOMA case turned in large part on a five-justice majority’s respect for state sovereignty in setting marriage laws.
On the other hand, just one justice found himself in both majorities. That would be Anthony Kennedy, who despite this week’s apparent consistency is generally considered the least predictable of the bunch. The court’s conservative and liberal wings took turns teaming up with him.
In the VRA case, the court decided nearly a half-century should have sufficed for Congress to review the basis on which it subjected some states, counties and cities to pre-emptive scrutiny (a.k.a. “pre-clearance”) before they can change their election laws in any way.
In the DOMA case, less than two decades passed before the court lost its patience with Congress, which of course was free to decide at any time to change the federally recognized definition of marriage away from one man and one woman.
In both cases, the court ultimately decided it needed to act in Congress’s place.
In the meantime, lawmakers at every level of government are left to wonder what they can do that will ultimately pass muster with this black-robed bunch. Is Georgia’s 2004 constitutional amendment banning gay marriage going to stick? Or did Kennedy’s meandering opinion leave enough wiggle room for the DOMA five to decide someday that state sovereignty in defining marriage isn’t really all that important?
If equal liberty and equal protection under the law necessarily dictate gay couples can no longer be denied federal benefits, why aren’t those protections already sufficient to end race-conscious college admissions in Texas and beyond?
Inquiring minds want to know. Good luck getting an answer out of these nine justices.