On September 25, 2014, Attorney General Eric Holder announced his resignation. As head of the United States Department of Justice (DOJ), Holder has been extremely proactive, placing the DOJ behind a number of important civil rights issues, including voting rights, immigration, and same sex marriage. His engagement with these issues has earned him both praise and criticism.
Indeed, in a press release announcing Holder’s resignation, President Obama specifically commended Holder as a visionary on same-sex marriage. Specifically, Obama stated:
“[S]everal years ago, [Holder] recommended that our government stop defending the Defense of Marriage Act—a decision that was vindicated by the Supreme Court, and opened the door to federal recognition of same-sex marriage, and federal benefits for same-sex couples. It’s a pretty good track record.”
President Obama is correct: the Court, indeed, vindicated Eric Holder on the issue of same-sex marriage. By a 5-4 vote, the Court declared DOMA unconstitutional, removing the marriage issue from the federal domain. Yet, to label his tenure as Attorney General “a pretty good track record” is a stretch to say the least.
Eric Holder presided over the DOJ during the Fast and Furious scandal, enjoyed a cantankerous relationship with Congress and ultimately held in contempt of Congress. But perhaps what has been most remarkable about Eric Holder’s time as attorney general is the government’s lack of success before the Supreme Court.
On important landmark cases across a broad spectrum of the law, the government found support among only a minority of the Justices. In two arguably most important or at least most publicized cases this past term, the government ended up on the losing side. In Hobby Lobby v. Burwell, religious liberty concerns under the Religious Freedom Restoration Act (RFRA) won much to the chagrin of the DOJ. In a totally different case—Harris v. Quinn—dealing with public unions and political speech, the DOJ submitted an amicus brief on behalf of the losing party. The government consistently found itself on the losing end on a broad spectrum of important cases. However, as these cases were close decisions that may be easily disregarded as partisan, they are not very telling.
More revealingly, on a number of cases the positions adopted by the DOJ found little support among any of the justices. More than once, the Government’s position lost unanimously 0-9. Take for instance, the Noel Canning v. NRLB—the Presidential recess-appointments power—where a unanimous Court held Obama’s recess appointments unconstitutional. In another high-profile case, McCullen v. Coakley, the DOJ wrote an amicus brief supporting the constitutionality of Massachusetts’ “buffer zones” outside of abortion clinics. All nine Justices disagreed.
Holder has had anything but a “good track record” before the court. To be fair, President Obama may have used “good” to refer to the fact that Holder adopted positions Obama finds amenable or politically palatable. Regardless, from any objective standard, the legal range, the high-profile nature, and the resounding losses before the Supreme Court all indicate a general lack of success.
Eric Holder may have displayed foresight on Gay Marriage but he has been anything but a visionary as Attorney General.