Now, just to be clear, states do have authority over many issues. Justice Kennedy noted many times in his majority opinion in US v. Windsor, the ruling issued yesterday striking down DOMA, that states have always had the authority to legislate marriage. As he put it, "The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the '[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'" But even this "sovereign" state authority is subject to Constitutional protections or guarantees of personhood, due process, and equal protection, something Kennedy also acknowledged. One of the problems with his opinion—people have already noted it is not the tightest Constitutional argument—is that he dallies with this notion of state authority and sovereignty before arriving at the moral center of his argument, that of human dignity. The common sense question at stake in Windsor was not whether states have the power to define or redefine marriage, nor whether the federal government has the power to instruct the states on such matters via a law like DOMA (i.e. federalism), but whether the government (and who cares if it's the federal government or a state government) can discriminate against a class of people for no other reason except, to quote Justice Scalia's dissent, "traditional moral disapproval of same -sex marriage (or indeed same-sex sex)." The common sense answer is "of course not," just like traditional moral disapproval of interracial marriage could not be tolerated by the Supreme Court in the 1960s. Not surprisingly, Kennedy is at his best making his case on the grounds of human dignity.
But by engaging in all that federalism language, even halfheartedly, Kennedy may have made the opinion vulnerable (perhaps intentionally so—to his discredit, he is a states' rights guy) to the Great Enemy of Social Justice on the bench—no, not Scalia (who also doesn't think Kennedy is making a federalism case out of Windsor), but the Chief Justice. In his own dissent, John Roberts concluded Kennedy's argument hinged on federalism (emphasis mine):
Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to theTo Roberts's thinking, Kennedy's argument claimed that the federal government overreached in passing DOMA, which means the federal government (including the Supreme Court) shouldn't get involved settling disputes about marriage as defined by states. He wants to turn this opinion into a precedent for not striking down state laws or amendments against gay marriage in the future. (Scalia thinks that ship has sailed.)
majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions. So too will the concerns for state diversity and sovereignty that weigh against DOMA’s constitutionality in this case.
Roberts's use of state sovereignty is more overt and more appalling in his majority opinion in Shelby County v. Holder, the case that Tuesday struck down Section 4 of the Voting Rights Act. Throughout the opinion, Roberts makes reference to "the principle of equal sovereignty" as the logical foundation for striking down legislation that singled out one portion of the country. The idea behind "equal sovereignty," as Roberts uses it, means that if the federal government passes a law that affects one region or set of states, there has to be a pretty good reason for doing so. Basically it is mean, wrong, and sometimes unconstitutional to treat states differently. Now in this particular case, the portion of the country that the VRA targeted launched a bloody Civil War in the name of racial slavery in which 630,000 men died and then the same portion perpetuated racial segregation and disfranchisement for another century, but such history does not concern the Chief Justice overmuch. In fact, the precedent of "equal sovereignty" that he cites states that "a statute's disparate geographic coverage" must be "sufficiently related to the problem it targets." The geography matters, but not history. Here, then, is his problem with the Voting Rights Act:
And despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect immediately, through the normal legislative process.
His argument makes sense but for one problem. There is no tradition of equal sovereignty. John Roberts made it up. Richard Posner, not by the way a radical liberal, pointed this out in a column for Slate in which he calls equal sovereignty "an imaginary doctrine." (So do some of his colleagues, here and here.) But what of that precedent that Roberts cited in his opinion, the one about geographic coverage? It comes from an earlier case regarding the VRA, Northwest Austin Municipal District v. Holder where "equal sovereignty" is mentioned once by the author of the opinion... an author who was, in fact, Chief Justice John Roberts. Moreover, Northwest Austin was an opinion that reversed a lower court ruling but never struck down a statute or law, so no one saw fit to dissent. Perhaps it was this milquetoast unanimity that gave Roberts the fortitude to issue this astounding critique of Justice Ginsburg's dissent in his Shelby opinion:
The dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance.Allow me translate that for you: "The dissent refuses to consider the idea I invented four years ago, despite the fact that I emphasized it four years ago when I invented it. (And by 'emphasize' I mean I used the phrase once.)" This is just one of the reasons why Ginsburg described the majority opinion with the word "hubris."
But wait, you may be saying to yourself... how can Roberts refer to a "tradition" and a "principal" of Constitutional jurisprudence without having something more than his own 2009 opinion to use as a precedent? Surely the phrase appears elsewhere? True enough. He does cite a couple of other cases in which the term "equal sovereignty" is used. The first is United States v. Louisiana in 1960, a case which also used the phrase just once. Here's how:
This Court early held that the 13 original States, by virtue of the sovereignty acquired through revolution against the Crown, owned the lands beneath navigable inland waters within their territorial boundaries, and that each subsequently admitted State acquired similar rights as an inseparable attribute of the equal sovereignty guaranteed to it upon admission.Yes, they employed the idea of "equal sovereignty" to describe the rights of states to resources within their territorial lands and waters upon admission to the Union—that's it. The second case is South Carolina v. Katzenbach in 1966 in which South Carolina (it's always South Carolina) tried to assail the VRA just as Shelby County would 47 years later. Check out what the Court said in response to South Carolina's argument:
The doctrine of the equality of States, invoked by South Carolina, does not bar [the VRA's] approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.Hmm... seems like the opposite way in which Roberts uses the "doctrine." (Ginsburg makes this point in her stunning dissent.) And besides, this is why history matters... you can't cite doctrines invoked by South Carolina because South Carolina makes shit up all the time. It always has. Look beyond South Carolina; look around in the Constitution. There is no language about state sovereignty in the Constitution. Amendment X doesn't even come close. There is only one document from the Founding Era that categorically enshrines state sovereignty, and that is the Articles of Confederation. Article II reads:
Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.This, incidentally, is the "sovereignty" US v. Louisiana is referring to—the original 13 did earn sovereignty in their revolution against the crown. Of course, the Articles of Confederation were such a abominable system of government, particularly because of the overweening power of states, that the states gave up that very sovereignty in adopting a Constitution. And that came not six years after the Articles were formally ratified. Even France doesn't switch governments that fast.
So where does all this state sovereignty crap come from? South Carolina, naturally. Here's South Carolina's John C. Calhoun in the 1828 South Carolina Exposition and Protest that he authored setting down the words that allow John Roberts to be John Roberts nearly two centuries later:
If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter bold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition.
South Carolina. Birthplace to John C. Calhoun. Seat of the nullification crisis. First to secede. Opened fire on Fort Sumter. Spawning ground of Strom Thurmond and the Dixiecrats. Native state to Jim Demint, the Tea Party leader, now president of the Heritage Foundation. And home to all the ideas that are driving the Court rightward, patiently guided by John Roberts.
It is astonishing but true that the conservative Justices are far more invested in having states be treated equally than people.