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.
The Court is eager—hungry—to tell everyone its view of the legal
question at the heart of this case. Standing in the way is an obstacle, a
technicality of little interest to anyone but the people of We the
People, who created it as a barrier against judges’ intrusion into their
lives.
They gave judges, in Article III, only the “judicial Power,” a power
to decide not abstract questions but real, concrete “true”“Cases” and
“Controversies.” Yet the plaintiff and the Government agree entirely on
what should happen in this lawsuit. They agree that the court below got
it right; and they agreed in the court below that the court below that
one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s
opinion, where a single sentence lays bare the majority’s vision of our
role. The Court says that we have the power to decide this 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 would “become only secondary to the President’s.”
But wait, the reader wonders—Windsor won below, and so cured her
injury, and the President was glad to see it. True, says the majority,
but judicial review must march on regardless, lest we “undermine the
clear dictate of the separation-of-powers principle that when an Act of
Congress is alleged to conflict with the Constitution, it is
emphatically the province and duty of the judicial department to say
what the law is.”
That is 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.
This image of the Court would have been unrecognizable to those who
wrote and ratified our national charter. They knew well the dangers of
“primary” power, and so created branches of government that would be
“perfectly coordinate by the terms of their common commission,” none of
which branches could “pretend to an exclusive or superior right of
settling the boundaries between their respective powers.” The
Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison).
The people did this to protect themselves. They did it to guard their
right to self-rule against the black-robed supremacy that today’s
majority finds so attractive. So it was that Madison could confidently
state, with no fear of contradiction, that there was nothing of “greater
intrinsic value” or “stamped with the authority of more enlightened
patrons of liberty” than a government of separate and coordinate powers.
They did it to guard their right to self-rule against the black-robed
supremacy that today’s majority finds so attractive. So it was that
Madison could confidently state, with no fear of contradiction, that
there was nothing of “greater intrinsic value” or “stamped with the
authority of more enlightened patrons of liberty” than a government of
separate and coordinate powers…
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