Jonathan Adler has an informative post at Volokh Conspiracy on Justice Ginsburg’s recent charge of “judicial activism.” He argues that “Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too ‘activist’ . . . .” Adler’s criticism can be expanded to Justice Ginsburg’s complaint about facial invalidation of Section 4 of the Voting Rights Act in light of her vote for facial invalidation of Section 3 of the Defense of Marriage Act.
On June 25, 2013, the Court released opinions in Shelby County v. Holder. And on June 26, 2013 the Court released opinions in United States v. Windsor. Justice Ginsburg argued in her Shelby County dissent that the Court abandoned its “usual restraint” by considering Shelby County’s “purely facial challenge” to the Voting Rights Act’s 2006 reauthorization. She complained that “the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit–Shelby County, Alabama.” Yet the next day we learned that she had joined an opinion that considered the constitutionality of DOMA’s section 3 as a facial matter. Rather than ask whether Congress had the power to limit the marital deduction from the estate tax to married opposite-sex couples, the Court considered the constitutionality of DOMA § 3 as applied throughout the entire United States Code. In both cases, the facial vs. as-applied nature of the reasoning was a consequence of the underlying substantive legal doctrine. If one has a problem with facial invalidation, then, it is better cast as a disagreement with the underlying substantive legal doctrine.