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DOMA and Selective Deference to Congress


[UPDATE]…welcome Dish readers! More coherent thoughts here.

Shorter John Roberts, Antonin Scalia, Clarence Thomas, and reasonable, moderate, thinking person’s most reactionary justice since James McReynolds Sam Alito: “Congress may not have the power to prevent discrimination, but it certainly has the power to deny the equal protection of the laws.”

Scalia’s dissent, in light of Shelby, is (to use his phrase) 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.

Shameless, you have to give him that.

Also, apparently Roberts’s “equal sovereignty” theory was good for all of 24 hours.

Good for Kennedy and the Democratic nominees for a major civil rights victory.

…Scalia is right to say, though, that the majority “robs the winners of an honest victory” by refusing to explicitly apply heightened scrutiny.

UPDATE: Prop 8 goes down too. Will have much more on both cases, but let me briefly say that while I’m happy Prop 8 will be struck down standing is the worst grounds for a good outcome: it’s a pernicious argument. The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law.

…the Perry majority coalition was odd: Roberts, Scalia, Ginsburg, Kagan, and Breyer. I guess nobody trusted Kennedy on the merits? If Kennedy was prepared to strike down Prop 8 on the merits, the 3 Democratic appointees in the majority screwed up royally, because this is a bad precedent.

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