[W]e got to U.S. v. Windsor, the controversial 2013 case in which a 5-4 majority struck down the Defense of Marriage Act (DOMA).... Justice Scalia had written a blistering dissent in the case, taking the majority to task for agreeing to hear the matter in the first place. “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case,” he had written.There is some speculation, in the wake of his death, that the Supreme Court might "just disappear" as a Constitutional organ. Frankly, I think that would be for the best: its current role as a rolling committee of 9 with the power to amend the Constitution at will has not been good either for the stability of the Republic nor the liberty of the People. There is no reason to believe that the Court will amend its ways, especially not if it obtains a fifth liberal vote. In that case, we can expect to see the Constitution rapidly rewritten so that conservative views are firmly declared to be not only illegal but unconstitutional. It is a road we have already come down a long way.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?It was a good question. The procedural history of the case was utterly bizarre. President Obama had instructed the Department of Justice not to defend DOMA from constitutional challenges because he believed that the statute was unconstitutional. Yet at the same time, the president had instructed other executive agencies, including the Internal Revenue Service, to continue enforcing DOMA’s provisions...
I asked Justice Scalia whether, notwithstanding Windsor’s limited precedential value, the threat to the separation of powers from “executive non-enforcement” had grown critical. In the wake of Windsor, had it become easier for the president not only to decline to defend laws that he found objectionable, but to decline to enforce laws that he found objectionable? ... Was there any basis, I asked, upon which the Supreme Court might rule on the constitutionality of executive non-enforcement?
It all depends on Congress, Justice Scalia responded—and “if Congress doesn’t do its job and challenge the president,” he said, “what we have is a failed democracy.” The blow landed. The room fell silent. The moderator called for a break.
A restrained Court could play its much more limited constitutional role wisely, but the wisdom resides in the limitations. The Court always runs the hazard of deciding questions one way for the whole of a very diverse nation. To the degree that it does so in "controversies," there is a kind of instability built into the use of the judicial power. The several states can agree to disagree. Citizens who care deeply about a controversy can move to a state that resolves it in a way they find agreeable. Every time the Court undertakes to solve a question once and for all, it damages our Republic's stability by forcing a minority -- sometimes a majority -- to accept that their views are illegitimate and may not be considered by any legislature.
There have been a small number of controversies in our history where such a radical approach was justified. Even in these cases, the use of the power is not guaranteed to result in a wise or just outcome. The Court decided to resolve one such question with Dred Scott.
Can Congress stand up for itself, and reassert its proper role? Would the Court, lacking Scalia, affirm their rights if it did? Or are we already past the gate described in these remarks?