If you talk to politicians, many will say last week’s historic Supreme Court decisions marked another example of black-robed jurists running the country.
But if you talk to some of South Carolina’s legal analysts, they’ll say the court appeared to perform the way it was supposed to.
“The court is not overstepping its bounds,” University of South Carolina law professor Derek Black said.
Black was addressing a flurry of decisions on controversial topics that included gay marriage in California and same-sex marriage benefits under federal law.
“The court is stepping up to protect the minority,” he said. “And that’s what the Constitution is designed to do.”
New Jersey Gov. Chris Christie, a potential 2016 GOP presidential candidate, spoke out against the decision that ruled a key component of the federal Defense of Marriage Act unconstitutional, giving legally married gay couples equal treatment under federal law. He disagreed with the high court stepping into a fray that he sees largely as a state issue.
“It’s just another example of judicial supremacy, rather than having a government run by the people we actually vote for,” Christie said on his monthly radio show.
Christie, who could be a regular visitor to South Carolina in the run-up to the 2016 presidential primaries, has advocated that gay marriage be put on the ballot for a majority of New Jersey’s voters to decide. A ballot question covering a ban on gay marriage through California’s Proposition 8 also was effectively buried by the court last week.
Gay equality. Affirmative action. Voting rights. All three decisions highlighted one of the more active court sessions in recent memory, drawing both jeers and cheers, and furthering the debate over state versus federal powers.
Charleston School of Law professor Debra J. Gammons said the court’s actions arguably could show that states generally fared well, such as with the court’s Voting Rights Act decision and also with an education case out of Texas.
“I just think it signified that state government is on an equal footing with federal government,” she said of one takeaway.
On the other side of the spectrum, however, critics assailed the decision that voided a key provision of the Voting Rights Act that required South Carolina and eight other states, mainly in the South, to seek federal approval for changes to their voting laws.
Civil rights activists said the move would eventually lead to minority voters being disenfranchised after the act had been in place since 1965.
In an affirmative action case from Texas the justices instructed lower courts to more closely scrutinize schools’ justification for using race as a factor in diversifying student bodies. The case involved a white woman who said the University of Texas had denied her admission based on race.
While those on the losing sides have said the judges were legislating from the bench, Black said some elements of all three cases can collectively be viewed as victories for the notion of state’s rights. For example, in the voting rights case, he said, the decision returned power to the states to run their own elections.
But Charleston School of Law professor Armand Derfner said the court’s decision to toss out wording that has protected Southern minorities for decades is a clear-cut example of the court overstepping Congress.
For evidence, he said Congress had reauthorized the act only seven years ago, even receiving a majority of support from South Carolina’s majority Republican congressional delegation.
“For the court to step up and say ‘we know better than Congress,’ then it’s clearly an activist court on that,” he said.
Ashley Landess, president of the conservative action group South Carolina Policy Council based in Columbia, agreed parts of the ruling showed evidence of the court letting the states have more controls.
“There are a million different ways to read all of this,” she said. But she focused particularly on the lifting of the Voting Rights Act as an example of the court saying the state should control elections.
“There’s no need for that extra layer of enforcement,” she said. “We have bigger fish to fry in South Carolina in terms of our election problems.”
She pointed to legislative delegations in the state controlling local election commissions and some of the localized election issues that have surfaced in recent years.
“Those need to be the sort of issues we can handle at the state level,” she said in agreeing with the court.
For the future
Black, meanwhile, said some sectors of the state would be well-advised to think about the legal consequences of venturing into rights-restrictive areas, harkening back to the days when South Carolina, like other states in the South, refused to recognize interracial marriage until the court intervened in the 1960s.
Speaking in terms of voter majority referendums like what was squashed in the California ballot Prop 8 gay marriage case, Black said a key Constitutional consideration is “protecting the majority from tyrannizing the minority.”
The notion that the “majority rules always” isn’t in line with what the Constitution stands for, Black said.
Reach Schuyler Kropf at 937-5551.
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