Commentary: Gay Rights, Civil Rights and the Supreme Court's Hypocrisy

The power to deny one's own use of power is the most dangerous power of all.

Posted: 06/26/2013 12:56 PM EDT
Commentary: Gay Rights, Civil Rights and the Supreme Court's Hypocrisy

It was a blistering dissenting opinion in the Supreme Court case striking down the Defense of Marriage Act on Wednesday in U.S. v. Windsor. Justice Antonin Scalia scolded the court's five-person majority for its blatant exercise of political power.

"This case is about power," Scalia began his dissent. "It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former."

It was a beautifully written paean to democracy, an articulate explanation of why the courts should not substitute their judgment for the judgment of the people and the legislature. And it was all hypocritical bull crap.

You see, just 24 hours earlier, Justice Scalia, that great defender of judicial restraint, had joined a different five-person majority on the court in striking down a key provision of the Voting Rights Act of 1965.

When the high court issued its decision in Shelby County, Alabama v. Holder on Tuesday morning, Justice Scalia joined the 5-4 majority in gutting the Voting Rights Act, even though Congress had voted overwhelmingly to reauthorize the act as recently as 2006.

But when it came to striking down a 1996 law on Wednesday, Scalia claimed "we have no power under the Constitution to invalidate this democratically adopted legislation." The cantankerous conservative even accused the majority of an "exalted conception of the role of this institution in America."

It's an appealing argument, but on further examination, the very same claim Scalia uses against the majority in the DOMA case could have been used against his majority in the voting rights case. Where you stand depends on where you sit.

In the Shelby case, the court argued that voting laws don't need to exist anymore because the south has become so much more open-minded. "Nearly 50 years later, things have changed dramatically," wrote Chief Justice Roberts, a former Reagan administration official who has tried for 30 years to kill or weaken the Voting Rights Act. And suddenly by judicial fiat, four privileged white men and one self-deceiving Black guy have overruled the judgment of all 98 U.S. senators who voted in a rare unanimous decision to reauthorize the law in 2006. It's hard to conceive of a more "exalted conception" of the court's role than this. But Scalia has no problem with his own judicial activism.

While Scalia claims the DOMA decision is about power, he misses the larger point. Court decisions are always about power. Justice is never blind. It is not always fair. And it is, and always has been, affected by the prevailing prejudices and biases of the day.  

Both liberal and conservative judges often cloak their opinions in the language of the law to disguise their exercise of power. The difference, perhaps, is that liberals typically use their power to expand the rights of the disenfranchised while conservatives use their power to restrict it.

That's the difference that Justice Clarence Thomas apparently doesn't understand either, as he indicated in his astonishing concurring opinion on Tuesday in Fisher v. University of Texas. In a masterpiece of historical revisionism and self-deception, Thomas compared current inclusive efforts at affirmative action to the 1960s exclusive efforts at racial segregation in the south.

"There is no principled distinction," Thomas wrote, "between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits." Actually there is, and any black man who can't tell the difference between segregation and affirmative action shouldn't be on the Supreme Court.

But today the Supreme Court used its power to stand up for gays and lesbians who have been discriminated against in marriage. Although this is an act of fairness and justice, it is an act of power nonetheless. Yesterday the court used its power to stand against the rights of black citizens who have been discriminated against in voting. This too was an act of power, but it was hardly fair or just.

The power to ignore the past is pernicious. But the power to deny one's own use of power is the most dangerous power of all.

Keith Boykin is a New York Times best-selling author and former White House aide to President Clinton. He attended Harvard Law School with President Barack Obama and currently serves as a TV political commentator. He writes political commentary for BET.com each week.

The opinions expressed here do not necessarily reflect those of BET Networks.

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