The panelists, participating in a program at the American Bar Association Annual Meeting in San Francisco, expressed concern about the justices’ inconsistent actions when it comes to deferring to Congress on the laws it has passed.
“If you read all of the opinions, especially on the last two days, your head will sort of spin trying to come up with a principle about when Congress is entitled to deference and when it isn’t,” said Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense and Educational Fund in New York.
“When you are trying to sort of make sense of this, the only organizing principal you can get from these opinions is something like, deference on Wednesday but not on Tuesday,” Adegbile added. “It’s very hard to come up with an orderly principal about when the deference is appropriate.”
He held up the Supreme Court’s 5-4 decision in Shelby County, Ala. v. Holder as an example of the justices dismissing Congress’ role. Adegbile said that when the court ruled Section 5 of the Voting Rights Act unconstitutional, it passed over all the legislative work that Congress had done and all the records that it had assembled documenting continuing discrimination.
In contrast, he said the dissenting opinion on the 5-4 decision for the Defense of Marriage Act mentions how outrageous it is for the court to displace the judgment of Congress in passing DOMA.
David Savage, who has served as the Supreme Court correspondent for the Los Angeles Times since 1986, said that Justice Antonin Scalia has said in the past that in “close call” scenarios, the justices should defer to elected officials.
However, Savage pointed out that Scalia gave a strong dissenting opinion on the DOMA case, asking what gives the justices the right to strike down this law that was passed by Congress, but that the day before he sided with those justices striking down Section 5 of the Voting Rights Act.
Adegbile said one major problem is the unwillingness of the court to articulate the standards that it is using to make judgments.
“Where the court is deciding these issues and not clearly articulating the rules of the road by which it comes to its decision, it puts the legislative branch in a special deficit position, which is having to go forward in the dark essentially and having to guess what it is it can and cannot do and how it can proceed,” he said.
Moderator Gordon Silverstein, assistant dean for graduate programs at Yale Law School, said the Supreme Court’s “utter contempt” for Congress comes across fairly strongly.
He pointed out that the justices do not have personal experience in the political arena, as none of them have ever been elected to office. However, most of them have extensive experience with the executive branch, working for the White House or the Department of Justice.
An audience member asked the panel whether the spate of recent 5-4 decisions was damaging to the Supreme Court’s reputation.
Rachel Moran, dean of UCLA School of Law, responded that she feels “one could argue that in a divided society those splits actually help the losers to feel that they have a chance of prevailing down the line.”
She added that close decisions symbolize to her that there are legitimate reasons that we as a people sometimes disagree.
Silverstein pointed out that “what may be more troubling is not 5-4 decisions, but 5-4 decisions where the justice is saying one thing on Wednesday and something that seems to be quite different on Thursday.”