A Defeat for Checks and Balances

New York Times
Editorial
November 12, 2010

The Supreme Court’s decision on Friday to allow the “don’t ask, don’t tell” policy to remain in effect is a victory for theory over reality and a defeat for America’s system of checks and balances.

It also underscores the bravery and competence of Virginia Phillips, the federal judge who mustered logic and persuasive evidence in September when she struck down the statute enacting the policy. She did the same in October when she issued a ban on its enforcement.

The Supreme Court’s order included no explanation, so it’s sensible to look for that in the Justice Department filing that urged the court to rule as it did. Repeatedly, it mentioned repeal of the law by Congress and the process under way in the executive branch laying the groundwork for that. It said the wrong way to overturn the law is by “judicial invalidation” and the right way is by “repeal of an act of Congress by Congress itself.”

Sometimes the courts have to act when Congress lacks the sense or the courage to do so. The Senate could have joined the House in repealing the antigay law in September. It did not. Given the sharp rightward turn of Congress in the elections, how can the Justice Department now make that argument with a straight face?

More