Posted by AzBlueMeanie:
In reading this morning’s opinions, I could not believe my eyes when i read this line from Justice Antonin Scalia’s dissent (.pdf) in U.S. v. Windsor:
“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.””
Seriously? 24 hours earlier, Scalia did not hesitate to gut the singular most important piece of civil rights legislation in U.S. history, the capstone of the Civil Rights Movement, the Voting Rights Act of 1965. Scalia did not hesitate to stab “a dagger in the heart” of this “democratically adopted
legislation,” approved by the elected representatives of Americans who
are able to “govern themselves.”
Following 21 days of testimony at hearings and thousands of pages of
documentary evidence, Congress passed the 2006 Reauthorization by a vote of
98-0 in the Senate, and 390-33 in the House. It did so based on
statutory findings that “without the continuation of [the Act’s]
protections, racial and language minority citizens will be deprived of
the opportunity to exercise their right to vote, or will have their
votes diluted, undermining the significant gains made by minorities in
the last 40 years.” Among other findings, Congress relied on the existence of so-called
“second generation” discriminatory practices in covered jurisdictions,
including at-large elections and racial gerrymandering, which have the
effect of diluting minority voting power. (h/t Brennan Center for Justice).
The conservative activist Justices of the court substituted their own ideological opinions for the legislative record of Congress that they rejected as inadequate — without any hearings or fact-finding of their own, the court is not a legislative body — because the legislative record did not comport with their predisposed prejudices and ideological opinions. The legislative record is entitled to due deference; Congress did its due diligence. Its power to reauthorize the Voting Rights Act is derived from Section 2 of the 15th Amendment. I would argue the majority opinion in Shelby County is a clear violation of separation of powers.
Justice Scalia’s self-proclaimed adherence to “judicial restraint” has always been conditional — he does whatever the hell he pleases whenever he wants.