Democracy and Disdain

Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965 — the “crown jewel” of the Second Reconstruction — as a reason not for deference, but for suspicion:

JUSTICE SCALIA: . . . What was the vote on this 2006 extension — 98 to nothing in the Senate, and what was it in the House? Was —

MR. ADEGBILE: It was — it was 33 to 390, I believe.

JUSTICE SCALIA: 33 to 390. You know, the — the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.

In this Term’s argument in Arizona v. United States, an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able to utter a complete sentence. And during argument in National Federation of Independent Business v. Sebelius (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court’s existing cases “have allowed,” the presumption of constitutionality disappears, to be replaced by “a heavy burden of justification to show authorization under the Constitution.” The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that “It ain’t nothin’ till I call it.”

126 Harv. L. Rev. 1 (2012) | DOWNLOAD PDF

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