It’s about time I got back to blogging. (Well, it was about time about two weeks ago, but… ) And there is surely no easier way to do so, though there are probably better ones, than to jump on the U.S. Supreme Court’s same-sex marriage cases bandwagon. Especially if one can do so in a self-satisfied way.
As everybody and their dog already know, in United States v. Windsor, the Court declared unconstitutional the misnamed Defense of Marriage Act (DOMA), by which Congress refused to acknowledge the same-sex marriages legally performed or recognized pursuant to laws of States. Dissenting, Justice Scalia wrote that “[t]his case … the power of our people to govern themselves,” (p. 1 of Justice Scalia’s opinion) and that the majority’s decision disregarded and diminished this power to install its own “black-robed supremacy” (3). The many such remarks in Justice Scalia’s opinion prompted the following tweet from Jeremy Waldron:
Now this is very interesting. Prof. Waldron, after all, is a staunch, albeit, unlike Justice Scalia, polite, opponent of “black-robed supremacy” over the will of the people. Indeed, I have argued that his arguments against judicial review of legislation and Justice Scalia’s in favour of limiting judicial review to the enforcement of the original meaning of the constitution are very similar, and that, if anything, “Justice Scalia and his fellow originalists are guilty of failing to follow the logical implications of their own views about the nature of the questions that arise in judicial review. They are, I suspect, fainthearted in that way ― fainthearted Waldronians.”
But prof. Waldron’s tweet points at a complexity that is often missed in debates about democracy and judicial review ― including, unfortunately, in his own work on this subject. These debates tend to focus on rights-based judicial review ― courts deciding the extent of citizens’ rights and of the governments’ ability to limit them. Judicial review is then usually presented, both by its detractors and by its more or less enthusiastic supporters, as a clash between the people’s representatives, between democracy and “black-robed supremacy.” But not all judicial review is of that sort.
In federations, judicial review can be based not (only) on rights, but also on the distribution of powers between federal and regional legislatures. The question such cases raise is not (only) whether a legislature had the power to enact the challenged law, but which legislature (if any) had that power. Such cases are not simply clashes between the will of the people and that of judges. They involve competition between the will of the people of the nation and that of a State, province, Land, etc., arbitrated by judges. To describe such cases as being only about judicial and popular or legislative supremacy is to miss this clash of two popular wills.
As Porf. Waldron points out, Justice Scalia’s vituperations neglect the fact that DOMA was enacted to override (or, at the time, to prevent the expression of) the will state citizenries that wanted or felt bound to recognize the equal validity of same-sex marriages. It was democratically enacted by representatives of a people, to be sure, but it was also, as Prof. Waldron puts it,” a usurping insult to democracy.”
It is, then, unsurprising that federalism was a key element of the Windsor majority’s reasoning, as Rick Pildes, Ilya Somin, and Randy Barnett, among others, explain. Windsor, I think, is a great illustration of why federalism-based judicial review is justified whatever one thinks of the philosophical problems afflicting its rights-based cousin ― it protects democracy from insulting usurpation. I know that prof. Waldron was not persuaded when I put an extended version of the foregoing argument to him in a version of this paper, originally written for a class that he co-taught (and which has since benefited from his always thoughtful comments). Now I wonder if he is on the way to changing his mind. If he is not yet, he should be.