THERE GO DE JUDGE(S) (DOMA EDITION)

[defrog]

SCOTUS has come and gone, and made some rulings. You’ve probably heard about at least one. And as an American citizen and a guy with a blog, I am required under the US Constitution to express my opinions about them.

And, me being me, they won’t be the big emo outpouring you get on Facebook and Twitter, but something a little more nuanced and looking at the actual legal issues involved rather than my gut feelings about which way I wanted the judges to rule. Sorry about that.

So we might as well start with the big one.

1. DOMA and Prop 8 are done

Well, at least Prop 8 is. (And congrats to California.) DOMA is not quite as done as you may think. As I understand it, Kennedy et al only struck down Section 3 of DOMA, which denies federal benefits to gay couples. Section 2 – which says that states that ban gay marriage (and there are still 37 of them, incidentally) do not have to recognize gay marriages even if the couple was legally married in another state – is still firmly in place. So there’s still a lot of grey area for gay couples who get hitched in one state but live in another. 

Still, it’s another step in the right direction. Obviously, I’m pretty big on gay rights, and DOMA was always a bad and pointless law – even the name was a stupid strawman intended to make it sound more crucial than it was. It’s also one thing I have never forgiven Bill Clinton for doing. 

And I think Kennedy was right to frame it as an equal protection issue. Justice Scalia can blather all he wants about “legalistic argle-bargle” – his own dissent seems less a legalistic argument for keeping DOMA intact and more a really long rant accusing Kennedy of trying to make homophobia look like a bad thing.

2. Know Yr Voting Rights Act 

There’s been a lot of talk about this one amounting to SCOTUS saying states get to legally keep blacks from voting again. That’s pretty overdramatic. What actually happened is that Roberts et al said the formula for calculating which states should be subject to federal approval of voting-law changes is outdated. A lot of focus has been placed on Roberts insisting that things are better than they were in 1965, but Roberts does say in his opinion – pretty explicitly – that he knows racism is still an issue and is in no way saying the VRA is dead. He just wants Congress to revise the formula. 

And that of course is the problem, since all the current Congress really wants to do is repeal Obamacare. So I get the concern. But from a strictly legal POV, I don’t have much of a problem with the VRA ruling as it is – at least based on what I’ve read about it so far. 

And yes, I know about Texas. Here’s the problem: voter ID laws have cropped up in 41 states in the last year. Eighteen of them so far have become law. The VRA has not prevented any of that from happening. Voter ID laws are dumb useless laws that pretend to solve a problem that doesn’t even exist and will likely disenfranchise some voters. That makes them a problem in any state, not just the ones covered in the VRA. Those should be challenged at a different level.

3. Affirmative action – not even close to dead

The other big case was the affirmative action ruling, which some people took as a greenlight for universities to make it harder for non-white people to go to college. The actual ruling was that affirmative action is constitutional, but you have to be able to prove that yr specific AA policy is constitutionally sound, and that hadn’t been proven in the UT-Austin case, so go back and do it right. So really it just gives Abigail Fisher another shot to win a case that is technically pointless since she’s long since attended and graduated from another university. 

So how that spells the death of affirmative action I don’t really know. In fact, an argument can be made that most universities will carry on as normal until someone complains about their specific policy, because that’s about the only way Fisher v. University of Texas is ever going to be enforced.

Looking back at the above rulings, it’s interesting to compare the actual rulings and the reasonings behind them to the armchair legal analysis on social media. Most people aren’t judges or legal experts, and tend to look at these issues based on how they feel about them. That’s fine, but then they act surprised and outraged when judges don’t rule the same way, and draw some erroneous conclusions as a result. For example: “SCOTUS says Section 4 of the VRA needs rethinking; SCOTUS therefore actively advocates the repression of non-white people from voting. FUCK YOU SCOTUS!” 

I’m fascinated by that disconnect, which assumes that SCOTUS makes all its decisions based on what’s morally right and wrong rather than the legal arguments before it. You don’t need much more than a few episodes of Law & Order to know that courts don’t work that way.

Yes, many judges are informed by ideology when they interpret law, and some abuse their power when dishing out rulings. But in the end – and especially with SCOTUS – it’s not their job to settle yr political arguments and decide which party is right or wrong. That’s why when you take yr case all the way to the top, you need to have a good legal reason for doing so, and it better be a legal reason that’s worth their time to consider.

Put another way, if you want SCOTUS to uphold DOMA, you have to give them something better than “Gay marriage is forbidden in the Bible and also really gross, Yr Honor”.

But then I think it’s funny that one guy I know went on Facebook and called SCOTUS a bunch of “fucking asshats” for their VRA ruling, then had to cheer them for the DOMA ruling, so I would say that, wouldn’t I?

And that’s all I got on SCOTUS.

Meanwhile, I recommend looking at sites like SCOTUSblog and The Volokh Conspiracy, which break down the complex legal arguments at the heart of all these cases.

Court is adjourned,

This is dF