Constitution: Justice Scalia “this case is about POWER”

SUPREME COURT OF THE UNITED STATES
No. 12–307
UNITED STATES, PETITIONER v. EDITH SCHLAIN
WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE
ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,and with whom THE CHIEF JUSTICE joins as to Part I,dissenting.

This case is about power in several respects.

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.

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 leg- islation.

The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

I
A
The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case.

Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” 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 Congressand the Executive.

It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “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 agovernment 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 must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit.See, e.g., Basic Law for the Federal Republic of Germany, Art. 93.

The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “‘province and duty of the judicial department to say what the law is.’” Ante, at 12.

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. 3 Correspondence and Public Papers of John Jay 486–489 (H.Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974); United States v. Richardson, 418 U. S. 166, 179 (1974). As Justice Bran- deis put it, we cannot “pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “‘real, earnest and vital controversy between individuals,’” we have neither any work to do nor any power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).
That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary. Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.1 What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there.

The further proceedings have been a contrivance,having no object in mind except to ele- vate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us.

In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.
The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983). But in that case, two parties to the litigation

{begin footnote}—————— 1For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.{end footnote}

disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legis- lative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, we permitted the House and Senate to intervene. Nothing like that is present here.

To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” Id., at 930–931. But in a footnote to that statement, the Court acknowledged Arti- cle III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.” Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court ofAppeals, where the Houses of Congress had not inter-

{begin footnote}—————— 2 There the Justice Department’s refusal to defend the legislation was in accord with its longstanding (and entirely reasonable) practice of declining to defend legislation that in its view infringes upon Presidential powers. There is no justification for the Justice Department’sabandoning the law in the present case. The majority opinion makes apoint of scolding the President for his “failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,” ante, at 12. But the rebuke is tonguein-cheek, for the majority gladly gives the President what he wants. Contrary to all precedent, it decides this case (and even decides it theway the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy. {end footnote}

vened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This pas-sage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U. S., at 939–940. But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.

The majority’s discussion of the requirements of ArticleIII bears no resemblance to our jurisprudence.

It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise.” Ante, at 6. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority socarefully quotes, ante, at 7—and yet no Article III controversy may be before the court. Article III requires not justa plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake
8 UNITED STATES v. WINDSOR
SCALIA, J., dissenting
sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms.Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional re-quirement to “prudential” status is a wondrous device,enabling courts to ignore the requirement whenever theybelieve it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a“prudential” element) of the sole Article III requirement of adverseness.

We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created bythis one.
The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III “controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445
U. S. 326 (1980), the District Court had entered judgment in the individual plaintiff ’s favor based on the defendant bank’s offer to pay the full amount claimed. The plaintiff,however, sought to appeal the District Court’s denial ofclass certification under Federal Rule of Civil Procedure
23. There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clearat the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred. The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not.

The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below.

And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy.

The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.

It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional.

Where the Executive is en- forcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitution- ality of the law, the litigation should end in an order or a consent decree enjoining enforcement.

This suit saw the light of day only because the President enforced the Act(and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen(more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitu- tional, see Presidential Authority to Decline to Execute Un- constitutional Statutes, 18 Op. Off. Legal Counsel 199(Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to atug of war between the President and

the Congress, which has innumerable means(up to and including impeachment) of compelling the President to enforce the laws it has written.

Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.

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 theCourt 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. For the views of our early Court more precisely addressing the question before us here, the ma- jority ought instead to have consulted the opinion of ChiefJustice Taney in Lord v. Veazie, 8 How. 251 (1850):
“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
“A judgment entered under such circumstances, andfor such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.” Id., at 255–256.

There is, in the words of Marbury,

no “necessity [to] expound and interpret” the law in this case;

just a desire to place this Court at the center of the Nation’s life.1 Cranch, at 177.

Read the rest of the opinion hosted by the Supreme Court,  here.

Ladies and Gentlemen,

(for editorial purposes, I added bold, spacing, and italics)

In more than 20 years of legal study, I have not seen such strong language from Justices towards other justices.

We are living in a time controlled by the “rule of man” ….

Please review Justice’ Thomas dissent here.

Do any of you remember when I wrote this post on the power of IMPEACHMENT contained in the Constitution?  Please review here.

Please scan up and re-read what Justice Scalia “said” when he wrote about the Power of Congress:

… the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written.

Not my words.  Not Joe’s words.  Justice Scalia of the United States Supreme Court.

— when the President fails in his duty to America, Congress may impeach the President.

May G-d bless, and keep safe, America.  Where ever she resides in the hearts of “liberty seekers”

texas

11 thoughts on “Constitution: Justice Scalia “this case is about POWER”

    • Don,
      I have stated in the past: The Federal Government has cut the ropes to the moorings of our Constitution. We can now add the Supreme Court has cut the chains to her very foundational underpinnings.

      I do not remember such appalling, forceful language before.

      When Supreme Court Justices abandon decorum, we all should be fearful.

  1. What the today’s rulings demo9nstrate is that — unless THEY just feeling like being so gracious as to give us what we want — the will of the people and their vote no longer matters. Government has declared it is no longer bound by the COnstraints of the Constitution.

    Prop 8 should demoinstrate that, even when the people over rule their State Supreme Court using the system the way it was designed to be sued, the Court can refuse to acknowledge the people or the power of the people. That should be a warning that the government — at all levels — now thinks of itslef as superior to and above the people.

    Hamilton said it best: when we find ourselves in this position, the right of self-defense enters the stage.

    • And THAT is why I say it will take us Marching on Washington to stop this …. nothing else will do it. Our voices HAVE to be heard en masse.

      Once again…….They ain’t gonna stop until they are Stopped.

      • on,

        Beginning to think you’re right. Sadly, even if we do so with ALL intentions of being peaceful, I can shake the fear they will turn it into another Kent State.

        • I said it before and Utah used it as the Beginning of one of his Posts…..

          We aren’t getting out of this Without Pain…….Either the pain of Fighting for our Country….our rights…and the Hope of a FREE Future for our Children…

          Or the Pain of Tyranny……with the FEMA camps and the armed DHS and the Boot of the Gov’t ( IRS , NSA, EPA) and worse on our Necks.

          What we have now is the Good people in the Country are Waiting for this to somehow all Blow over…..or they are waiting for the Next guy to stand up…..or they are waiting for some Leader , then they will follow they think…..And a Leader is an important Factor…..but what makes a Leader successful is the strength and conviction of those He / She leads !!

  2. Justice Scalia:
    “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 must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit.See, e.g., Basic Law for the Federal Republic of Germany, Art. 93.”

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