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More Than Doma


The Defense of Marriage Act, or DOMA, an acronym I dearly love—it being one letter short of ‘dogma’—was struck down by the Supreme Court on Wednesday. This decision came just days after two other momentous rulings, in which the 5th Amendment right to remain silent was significantly scaled back, and the Voting Rights Act was effectively struck down. Those given to speculation might think that it was a cynical calculation on the part of the Court end with the DOMA decision: all the fanfare that would predictably accompany such a popular decision could drown out the grumbling over the other two repugnant rulings.

Regarding the 5th Amendment, the Court decided that a defendant’s refusal to answer law enforcements’ questions before being arrested or Mirandized is not constitutionally protected. Instead, the defendant must explicitly invoke the 5th amendment if s/he is to remain silent during questioning and not have it used against them in trial. In practical terms, this hurts people who don’t have knowledge of their legal rights and how to exercise them. As for the Voting Rights Act, The New York Times, not usually given to hyperbole when it comes to defending civil liberties, summarized the Court’s ruling as having “eviscerated enforcement of the Voting Rights Act”; also it calls the decision “damaging and intellectually dishonest.” The Times’ implicit assumption that the Court was ever an intellectually honest institution is naïve, recalling a prep school civics textbook’s botoxed account of U.S. history’s wrinkled visage. The true history of the Court tells quite a different story.

In a case called Marbury v. Madison, the U.S. Supreme Court unilaterally granted itself the authority to strike down acts of Congress. To the untrained eye this would appear to be a problematic form of authority, for unlike Congressional leaders, Court Justices are unaccountable to voters, since they are lifetime appointees. But any well-disciplined law student knows better. They call the Court’s virtually absolute authority by its proper euphemism: ‘judicial review’. As this sophistry goes, the Court’s authority to nix the decisions of democratically elected congresspeople is in our best interests, for it is merely there to make sure that the laws they pass are constitutional. Never mind the Court’s clearly unconstitutional decisions, like that which upheld the legality of separate but equal arrangements, in which Blacks could be forced to drink from separate water fountains from Whites (Plessy v. Ferguson); or Dred Scott v. Sanford, which held that Black residents of the U.S. could not be counted as citizens. Also ignore the obviously political decisions that had nothing to do with matters of constitutionality, perhaps most famously that of Bush v. Gore, a 5-4 decision in which the Justices decided along party lines.

The unilateral manner in which the Court gifted itself with legal authority above and beyond Congress recalls Egyptian President Mohammed Morsi’s November 2012 decree. When Morsi granted himself immunity to legal challenges, the world—including the U.S—rightly denounced him as a dictator. When the Supreme Court does it, it’s called prudent. There’s a further similarity between these two cases: both justified their power grabs in the name of the constitution. Whereas the Supreme Court claimed its privileges were selflessly taken up in the interests of maintaining constitutionality, Morsi likewise held that he only granted himself absolute authority so as to ensure the Constituent Assembly’s ability to draft a constitution.

The undemocratic character of the Supreme Court is not surprising. The first Supreme Court Justice, John Jay, believed that the “people who own the country ought to govern it.” This plutocratic attitude is evident in today’s Supreme Court, which is largely composed of former corporate defense attorneys. Setting aside the easy examples (like Justice Clarence Thomas’ time as an attorney for Monsanto and his subsequent favorable rulings for that corporation), let’s look at the liberal Justices. Sonia Sotomayor spent significant time in commercial litigation, defending a multinational firm that specialized in high-end handbags against handbag counterfeiters. Reflecting on having taken up a job as Assistant District Attorney in New York, prosecuting—in her own words—“low grade crimes” largely committed by poor people, she admits that “there was a tremendous amount of pressure from my community, from the third-world community…they could not understand why I was taking this job. I’m not sure I’ve ever resolved that problem.” The note of contrition in her words is interesting: even she seems to recognize that she sold out the poor minority community from which she came. That’s typically what happens when one attends four years of an elite—not to be confused with quality—academic institution.

Elena Kagan, another liberal justice, worked for Goldman Sachs. And then there’s Stephen Breyer, Clinton’s appointee, who is a deregulation enthusiast. He wrote two books advocating deregulation. He also played a significant role in passing the Airline Deregulation Act, a considerable part of the reason that air travel is such a mess in the U.S. In fact, Breyer even offered a recognition, more petulant than Sotomayor’s, about the negative impact of his deregulations: “We sit in crowded planes, munch potato ships, flare up when the loudspeaker announces yet another flight delay”.

So what has the High Court done for ordinary people? One of the better examples would be, of course, its decision to strike down DOMA. But the causal factor behind this decision is probably not judicial generosity; it’s public opinion. Polls from respected polling institutions demonstrate that the majority of Americans support benefits for same-sex spouses of Federal employees; also, a majority supports gay marriage itself. Given these figures, I think the Court saw DOMA’s demise as inevitable, and decided to take credit for it before Congress did. Gratitude shouldn’t be directed to the Court, but to those actually responsible for shifting public opinion away from bigotry against LGBT: activists.

If anything, the Court’s unaccountable authority should be challenged. History demonstrates that when threats to the Court arise, it suddenly becomes generous with concessions. The Court originally struck down the New Deal as unconstitutional. When the public backlash prompted FDR to threaten to dilute the Justices’ power with his Court packing bill, suddenly the Court had a revelation: the New Deal was constitutional after all. That change of heart obviously wasn’t motivated by benevolence. I suspect neither was its decision to end DOMA.

Ken Klippenstein lives in Madison, Wisconsin, USA, where he edits the left issues journal, He can be reached at

Ken Klippenstein is an American journalist who can be reached on Twitter @kenklippenstein or by email:

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