In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: "We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."
Justice Roberts wrote in his concurrence: "I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below... I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act."
Yet that reasoning didn't stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn't the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
It doesn't seem like the Chief Justice has a very sound grasp of the Constitution when it comes to the VRA. Richard Posner, an esteemed conservative legal theorist at the University of Chicago and a judge on the US Court of Appeals for the Seventh Circuit, wrote in Slate that Roberts struck down Section 4 of the VRA for violating the "fundamental principle of equal sovereignty," which, as Posner writes "is a principle of constitutional law of which I had never heard -- for the excellent reason that...there is no such principle...The opinion rests on air." The extensive record developed by Congress, most recently in 2006, Posner writes, "should have been the end of this case."
David Gans of the Constitutional Accountability Center made a similar point to Steve Benen of MSNBC's MaddowBlog yesterday:
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