JEFFREY BROWN: And finally tonight, to the analysis of Shields and Gerson, syndicated columnist Mark Shields and Washington Post columnist Michael Gerson. David Brooks is off tonight.
And welcome to you.
I don’t know if we can go behind the scenes of the Supreme Court, but let’s start there, Mark. This momentous week, three major issues in American life really looked at by the court, was there a theme? What jumps out at you generally?
MARK SHIELDS: I think the theme, if one thinks about American presidential elections in the last generation, there have been — villains to the conservative side have been liberal do-gooders, child pornographers and activist judges.
JEFFREY BROWN: Just to pick three categories.
MARK SHIELDS: And I don’t think there’s — I don’t think there’s any question that activist judges emerged this week.
Liberals seemed to be pleased that the activist judges repealed an act of Congress, DOMA, which, you know — basically repealed it. I mean, you can go into the legally niceties Marcia understands a lot better than I, obviously.
But at the same time, conservatives were delighted that it limited the Voting Rights Act. Or a lot of conservatives were. So you had it being an activist court. I do think the point that Margaret and Marcia discussed about the pro-business side, I don’t think there’s any question that this court is anything but economically populist. It’s very much employer- and large institution-directed.
JEFFREY BROWN: Michael, what do you make of what happened this week?
MICHAEL GERSON: I guess I have a slightly different take.
It’s hard to determine a single philosophy, judicial philosophy here. Sometimes, they deferred to political action. Sometimes, they aggressively overturned it. Sometimes, they avoided choices, for political reasons, I think. So you have a situation where the — but you do have a common outcome, which is really the strengthening of states’ rights in a lot of these cases.
You have it in the voting rights case, clearly. You have got it in marriage law. You even have them saying that state officials can invalidate referendum because they won’t defend it in court. So this is a philosophy of tinkering. Sometimes, they put their finger on one side of the scale, sometimes the other.
It seems rather political and outcome-oriented. It’s not always judicial activism, but sometimes it seems like judicial arrogance. They’re intervening in a lot of different ways to do balance here, balance there.
JEFFREY BROWN: But when you take a specific case like the voting rights case, do you see that as tinkering or was that a dramatic change?
MARK SHIELDS: I think it’s a dramatic change. If you take an act of Congress, which is more than a constitutional act, as Marcia pointed out, 15,000 pages of testimony by a 98-0 vote in the United States Senate it’s extended, by 390-33 in the House — you can’t get 390 House members to agree on a Mother’s Day resolution.
They extended it.
And, you know, the court basically, led by the chief justice, said, no, this is not going to be — this is not acceptable to us. And somehow this — there is an otherworldly quality about judges. They seem indifferent to the fact that once they say money is speech that we’re going to have $4 billion dollar campaigns.
They seem indifferent to the fact that once they say the Voting Rights Act is suspended that the attorney general of Texas, Mr. Greg Abbott, says oh, we’re going to go — our Texas voter I.D. law, which had been held up by the Justice Department, is now going to be imposed. Under the Texas voter I.D. law, a valid student identification from the University of Texas at Austin is not adequate to prove who you are, but a concealed weapons permit is perfectly OK.
I mean, you can pack heat going into a — going into a beer garden is fine in order to vote. I mean, so we’re going to see — I don’t know. This is what — the direction I see it’s going.
JEFFREY BROWN: And — go ahead.
MICHAEL GERSON: Well, obviously, I agree with Mark. That’s a little more than tinkering on the Voting Rights Act.
This is a case where I think the court — the majority of the court actually made a pretty good case that this targeting of various states and localities was outdated, that these formulas should be updated. But that’s a policy case. There was very little constitutional case here.
You know, the — if the chief justice wants to make those changes, he can run for the Senate.
MARK SHIELDS: That’s right.
MICHAEL GERSON: This was debated by the Congress. They had hearings on this topic, on this specific topic.
Then they came to a decision that Barack Obama voted for and George W. Bush signed. You have to have a compelling constitutional reason to void something like a recent, almost unanimous decision of the Congress. He really — the chief justice didn’t produce that reason.
JEFFREY BROWN: What about the same-sex marriage case?
Let me ask you first, Michael, because one thing, a lot of talk about the changing culture into which this fits. Right? Is the court leading the way? We just lost lights and power here.
Just for our audience at home — our audience at home, we have got a big storm going on around us, and we have been hearing thunder and lightning and now we’re sitting in the dark. But we will keep talking.
MARK SHIELDS: Literally in the dark.
JEFFREY BROWN: … that way for years.
MARK SHIELDS: … we’re bright…
There we go. Let there be.
JEFFREY BROWN: I see the light.
Well, you speak with the light.
Is the court leading the way here or following the culture?
MICHAEL GERSON: Well, first of all, we have seen a remarkable change. People forget on this issue that Barack Obama and Hillary Clinton both ran in 2008 opposing gay marriage.
And now we have about 50 percent of Americans who support, with California, about 30 percent of Americans living in localities that have gay marriage. That is a massive social change, faster than any that I have seen in a long time.
I don’t think the court wanted to lead social change on this. They found a way to defer to states on this issue. The decision is oddly mixed. It’s a strong affirmation of federalism, so strong that it applies to the federal government. At the same time, you have Justice Kennedy essentially lecturing anyone who opposes same-sex marriage and saying that it’s done for reasons of bias.
And so — but I think the ruling itself allows this to move forward in a democratic fashion.
JEFFREY BROWN: What do you think about the court leading the way or society leading the way?
MARK SHIELDS: Mr. Dooley, the great American political philosopher, the creator, Finley Peter Dunne, in the 19th century, said the Supreme Court follows the election returns.
And I don’t think there’s any question here that this is a movement that is spectacular in its volume and its intensity and its momentum. Just think, 2004, George W. Bush was reelected — was reelected carrying Ohio. And the key to carrying Ohio — the architect was Ken Mehlman, interestingly enough, who now, eight years later, nine years later, is one of the prime supporters of same-sex marriage — but was a ballot initiative in Ohio to outlaw same-sex marriage, which drove up the turnout among conservative religious voters in rural areas and provided the margin of victory in Ohio, and Ohio provided the margin of victory for President Obama’s reelection over John Kerry.
And that, to me, is absolutely remarkable. And the theme has been just one of equality. It’s not one of special treatment. We just want equality. And I think the arguments that were used against it have been so disproved. I mean, somehow that same-sex couple that moved in over the next block was going to threaten traditional marriages all over our neighborhood. That obviously didn’t develop.
MICHAEL GERSON: I would add, this was a good outcome for supporters of federalism, but it was also probably a good outcome for supporters of gay marriage.
A Roe v. Wade-like decision …
… forcing same-sex marriage on Alabama would produce a deep social division on this question.
JEFFREY BROWN: Right.
MICHAEL GERSON: And these forces have the political momentum, and I think this continues that momentum.
JEFFREY BROWN: But what about the politics going forward? Mark raised past politics, Republican politics. What happens now in the states and at the federal level around this issue?
MICHAEL GERSON: Well, we’re going to see very quick battles on referendum in major states. They are going to take a lot of money, a lot of attention.
Oregon, Ohio, Indiana are likely to have these changes. The Republican Party itself, as we’re learning, is going to have divisions, internal divisions on this. You have people like Rob Portman who have become strong supporters of gay marriage.
But I would say that Republicans are united in their conviction, including Portman, that this should be done through legislative methods and not done through the imposition of courts.
MARK SHIELDS: I don’t argue that.
I think — but what it does is it energizes a base which is quite frankly representing a distinct minority of the country at this point, and a shrinking minority. So you saw Republican House members yesterday, Michele Bachmann, among others, saying, no, no, we’re going to lead the fight here.
To the degree that that becomes the face of the Republican Party, when it doesn’t have a national standard bearer or a president, I think that’s a problem for the party that is seen as narrow-minded, that is seen as sort of mean-spirited. So I think the other thing is, over the past 10 years, 15 years, more and more people, because of the climate, because of the acceptance of gay people and gay status, gay identification, have come out.
And more people have relatives, friends, neighbors, co-workers, and so they have a greater stake in this. I mean, I just think the momentum — and I agree Michael that what we saw on Roe is very divisive in the country. America remains pro-choice and anti-abortion. I mean, there’s the ambivalence on that 40 years later to a considerable degree because we have not resolved in the same way politically.
JEFFREY BROWN: But we still have more states banning same-sex marriage. Are we going to be looking at a continued system of kind of patchwork quilt of states that — sort of a version of the red state/blue state in this country over issues like same-sex marriage, abortion, et cetera?
MICHAEL GERSON: Well, I think that there’s a big division in views on this.
I think many supporters of gay rights believe that this is going to advance to a majority of states and cover most of the country and that the courts at that point may be more prepared to declare under the 14th Amendment a protection here.
But there are significant portions of the country that are not going to make this change in any short order, it seems to me. It will be a source of division. I don’t think it’s as lasting a source of division as on the abortion issue, however.
MARK SHIELDS: No.
MICHAEL GERSON: For opponents of abortion, this is a matter of life and death. There’s a deep emotional intensity on both sides of that issue that I’m not sure a debate on the nature of a social institution is going to engender.
MARK SHIELDS: Well, I mean, in large part because the dire consequences predicted that it was going to somehow undermine, sabotage, subvert traditional marriage if it occurred just obviously have been disproved.
I do think that what you will find in state after state is employers, the business community saying, look, in order to get the best people in here, we have to change the law here. We have to make it more welcoming to gay workers, to make it a climate where people want to come, are going to feel that they’re leaving the coasts and that blue America to come to a place that at least they can be comfortable with their own values.
JEFFREY BROWN: And that’s going to change the politics and the law, you think it’s things like that, in the culture?
MARK SHIELDS: I think that and I just — and I think the more and more people who — it’s equality.
I mean, it’s a very straightforward argument. It’s not, we want special treatment for left-handed Unitarians who are less than four feet tall. I mean, it isn’t anything like that. It’s just saying we want people treated the same. And I think that has been a — it’s been a persuasive argument.
JEFFREY BROWN: All right, Mark Shields, Michael Gerson, thanks very much.