The Great Debate
Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act? To answer this question, legal scholars need to know less about constitutional law and more about human psychology.
Several years ago the trial judge presiding over the federal constitutional challenge to California’s Proposition 8 asked Charles J. Cooper, the lead lawyer defending the voter-approved measure, how the recognition of same-sex marriages affected heterosexual couples. Apparently caught by surprise, Cooper, a former assistant attorney general under President Ronald Reagan, candidly answered that he did not know.
It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.