Goldstein on the Court’s “Power”

This morning, SCOTUSBlog’s Tom Goldstein has an essay on the Supreme Court’s power of judicial review. It begins:

You should decide now what kind of Supreme Court you want. Don’t wait until after the Justices hand down the Term’s major decisions. That will be too late. Make a real choice now about how much power you think the Court should have – before your judgment is skewed by either elation or outrage at the results.

The Justices are being asked to strike down important federal laws that passed Congress with broad majorities. Section 5 of the Voting Rights Act requires states and local governments with a history of discrimination to get approval from Washington for all changes to their voting laws and practices, no matter how minor. This historic, foundational piece of civil rights legislation was recently re-enacted almost unanimously. The Court previously upheld it. A ruling now going the other way would be quite “conservative.”

Section 3 of the Defense of Marriage Act (refusing to recognize state same-sex marriages for purposes of federal law) was enacted with broad bipartisan support, including from then-President Bill Clinton. At the time, very few people seriously believed it was unconstitutional. Striking it down would be a “liberal” move.

But here’s the thing. The challengers in the two cases are ideological opposites but have very similar constitutional theories. They say that the laws violate federalism. A state has a basic right to make rules about voting and to decide who among its residents is married. The federal government cannot lightly reject those decisions – or so the arguments in the cases go.

You can read the rest of the essay here.

Should the Supreme Court invalidate both DOMA and Section 5 of the Voting Rights Act — a very real possibility — this would be further evidence that the Court (or at least Justice Kennedy) takes federalism quite seriously. It would also help demonstrate that federalism principles, applied consistently, are not necessarily “liberal” or “conservative.” Limiting federal power limits the ability of the prevailing political coalition from imposing its preferences on the nation, whether it leans right or left. It also increases the ability of people to live within jurisdictions that adopt policies in line with their value preferences. It also means that some states will be allowed to adopt policies that many people don’t like, but that’s merely the other side of the same coin. If federalism is to be meaningful, it has to cut both ways.