Scalia: "That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives."

After quickly looking at Scalia's dissent in today's case, I was ready to jump all over him for the apparent contradiction between his dissent today in the Defense of Marriage Act (DOMA) and his position in yesterday's Voting Rights Act (VRA) decision.

He writes, with passion:

"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. 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. .  ."

Then he goes on a little later to say the Majority is saying it has the power to decide the case "because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would 'become only secondary to the President’s.'  .   .”

"That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives. It is an assertion of judicial su- premacy 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." [emphasis added]

My reaction was that Scalia's comment is jaw-dropping.  Just yesterday the Court ruled Section 4 of the Voting Rights Act unconstitutional.  The Voting Rights Act passed 98-0 in the US Senate and 390-33 in the House.  Yet Scalia, who mocks today's majority for overturning a section of the 1998  Defense of Marriage Act, had voted to invalidate the 2006 overwhelming decision of the Congress in passing the Voting Rights Act.  There's nothing in the opinion that worries about the Supreme Court overstepping its power.  Instead there is a plaintiff (Shelby County) with a record of curtailing the voting rights of Blacks, compared to today's case where the surviving spouse had to pay a huge tax on her inheritance from her partner of over 30 years, simply because her legal spouse was not a man.

Later in his dissent, Scalia cites James Madison's Federalist Papers comments on separation of powers and from that concludes:

"For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” Ante, at 12. 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,’” ibid., giving the Supreme Court the 'primary role in determining the constitutionality of laws.'”  

He then chides the majority for perhaps thinking they were bound by the constitutions of foreign countries

"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. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’”

I didn't quite understand what he was saying here, but as I read on, it becomes clear that he is making a distinction between cases  in which the Court must make a decision between two competing claims and this case, in which both the plaintiff and the government (the original defendant) now agree.  And where the plaintiff already got relief in the lower court.  In this case, he's arguing, the Court's purpose is not to adjudicate a disagreement, but to declare DOMA unconstitutional, which the appeal court had done already in the Second Circuit, and now the Supreme Court is doing nationally.

"Windsor’s injury was cured by the judgment in her favor. And while, in ordi- nary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judg- ment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One Cite as: 570 U. S. ____ (2013) 5 SCALIA, J., dissenting could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affir- mance of the judgment against it.1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judg- ment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the Dis- trict Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to ele- vate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States."

As I understand this case, the US government chose NOT to appeal the Appeals Court decision.  Instead, Congressional Republicans took on that task.  Perhaps the appropriate action, given Scalia's line of reasoning, would have been for the Supreme Court to not ever hear this case, or, if they did, to reject it, as they did with the Perry case on Prop. 8, because the party bringing the case didn't have standing.

But it does seem that the Republicans who brought the case were the ones asking the Court to overturn the lower court decision and to say that same-sex marriage is NOT guaranteed by the Constitution.  So, if the Court declined to hear the case, it would, de facto, agree with the lower court that DOMA wasn't constitutional.  But only in the Second Circuit.  That would mean the issue would still be unsettled in the rest of the United States.

It is ironic that it was the Republicans who brought the case and were trying to overturn the lower court decision and Scalia says the case has no business at the Supreme Court.  One wonders if Kennedy had not agreed with the liberal side of the court on this case whether Scalia would have had a problem overturning the lower court decision.  If so, that would make all this legal smokescreen for his personal emotional aversion to homosexuality.

As I suggested the other day when reporting his comments at the North Carolina Bar Association, perhaps the passion he exhibited there reflected that he had lost his argument in the Court and so he was repeating his argument to the North Carolina lawyers.  It seems that was the case.  I also wondered how genuine his anguish over being the 'moral arbiter' was.  I still think that's a role he doesn't mind playing.  It's losing on a decision he has strong personally feelings about that bothers him, I suspect.