Scalia’s DOMA dissent: it’s not about gay marriage, it’s about the role of the SCOTUS

Supreme Court decisions are notoriously cumbersome to read. They refer to lots of past cases, and are sprinkled with legal jargon.

That said, you simply MUST read Justice Antonin Scalia’s dissenting opinion in the recent United States v. Windsor case (also known as the Defense of Marriage Act/DOMA ruling).

It starts on page 35.

To sum up, Scalia points out that the grievance brought to the Supreme Court had actually already been addressed by lower courts — the plaintiff had had her injuries redressed.

In other words, the plaintiff (as I understand it) had actually recommended that the Supreme Court uphold a lower court’s ruling on the matter. Which begs the question of why the issue was brought to the Supreme Court at all.

No matter. Scalia points out that, because the injuries had been addressed in a lower court, the Supreme Court had no standing to rule on this issue.


Scalia excoriated the majority’s opinion (the issue went 5-4, with Kennedy considered the swing vote) that it was justified in ruling on the constitutionality of this, or any law. The court does NOT have the authority to rule, willy-nilly, on any particular law it wants, that that law is unconstitutional. Rather, such a consideration may only be relevant (or even allowable) when the court is ruling in the case of a specific grievance between two individuals/entities.

In other words, it is not the primary role of our Supreme Court to simply interpret the law.

That role is only accidental, in that the court may determine a law as unconstitutional when it is considering a case before it in which the enforcement of that law is purported to have caused injury.

Here’s how Scalia says it:

Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation
marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossitered. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” Ante, at 12.
We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.”


The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law.


Scalia points out that if the Supreme Court has the ability to rule however it wants, whenever it wants, on any law it wants, regarding whether that law is constitutional, then the Supreme Court has become the supreme ruler of the land. We will have exchanged a constitutional republic for an oligarchy—the rule of 9 men and women.

THAT is the most important word to come out of this case. Of course, that word isn’t sexy, so the media ignores it, and talks about how exciting it is that gay folks can get hitched.

Gay marriage still stands on shaky ground. But this word from Scalia is an attempt to define the role of the court as something OTHER than a supreme dictatorship; and THAT must be FOUNDATIONAL in our understanding of our self-governance.

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