President Barack Obama, a former constitutional law professor, masterfully manipulated the judicial system to advance his progressive agenda, most notably in United States v. Windsor (570 U.S. 744, 2013). This landmark Supreme Court case struck down Section 3 of the Defense of Marriage Act (DOMA), paving the way for same-sex marriage nationwide, a right later codified in Obergefell v. Hodges (2015). However, it was Justice Antonin Scalia’s blistering dissent in Windsor that exposed Obama’s tactic as a dangerous abuse of power, warning that it could unravel democracy itself. Scalia’s fears resonate today as President Donald Trump faces relentless lawfare from left-wing groups and sympathetic judges. Trump must either dismantle this democratic “weapon of mass destruction” or wield it to expose deep-state secrets, such as the Kennedy or Epstein files. Scalia’s warnings suggest the former is the wiser path to preserve our republic.
Obama’s Lawfare: The Windsor Sham
DOMA, enacted in 1996 under President Bill Clinton, defined marriage for federal purposes as a union between one man and one woman. In Windsor, Edith Windsor challenged DOMA’s Section 3 after being denied a spousal tax exemption following her same-sex partner’s death, forcing her to pay $363,053 in estate taxes. Despite publicly supporting traditional marriage during his 2008 campaign, Obama, sensing a shifting political landscape, revealed his true stance. His Justice Department agreed with Windsor that DOMA was unconstitutional but refused to refund her taxes, ensuring the case would reach the courts. This created a faux adversarial proceeding—both sides secretly aligned to secure a Supreme Court ruling advancing same-sex marriage.
Justice Scalia saw through this ruse, accusing Obama of orchestrating a collusive case to bypass Congress and the democratic process.
He wrote:
The Court today… decides this case (and even decides it the way the President wishes) despite his abandonment of the defense and the consequent absence of a case or controversy… This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.
(Windsor, 570 U.S. at 2699-2700, Scalia, J., dissenting). Scalia’s point is simple: Obama’s Justice Department pretended to fight the case while secretly agreeing with Windsor, manipulating the judiciary to rewrite marriage law without voter input. This wasn’t a genuine legal dispute but a staged performance to achieve a policy goal.
Scalia’s Warning: A Threat to Democracy
Scalia argued that this tactic—where the Executive refuses to defend a law, colludes with a friendly plaintiff, and relies on a sympathetic court—sets a perilous precedent. He lambasted the Court for enabling Obama’s ploy:
There is no justification for the Justice Department’s abandoning the law in the present case… The majority opinion makes a point of scolding the President for his ‘failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions,’ but the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants.
Scalia’s dissent warned that this approach undermines the judiciary’s role as a neutral arbiter:
The majority’s opinion… is a betrayal of our constitutional system, which assigns to the people, through their elected representatives, the right to determine the law. By entertaining this suit, the Court ensures that the Executive can bypass Congress and use the judiciary as a tool for policy-making.
Scalia’s concern is this: if the President can hand-pick a plaintiff and a court to rubber-stamp his agenda, laws no longer come from Congress or the people. Imagine a worst-case scenario where a President, a cooperative plaintiff, and a friendly judge—perhaps appointed by that President—collude to invalidate any law they dislike. This three-way collusion could nullify election results, tax codes, or gun rights, replacing democracy with a judicial dictatorship. Scalia saw this as a threat to both left and right, warning that it could “cheat[] both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat”
Scalia further cautioned that Windsor’s precedent could embolden future challenges to traditional marriage laws, predicting the Court’s rhetoric would be weaponized:
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition… The result will be a judicial distortion of our society’s debate over marriage.
This prophecy came true in Obergefell, where the Court relied on Windsor’s logic to mandate same-sex marriage nationwide, overriding state laws and voter referenda. Scalia’s fear was that such judicial overreach could extend to any issue, eroding the people’s right to self-governance.
The Extreme Danger: Democracy’s Endgame
Taken to its extreme, the Windsor tactic could dismantle democracy entirely. If a President can orchestrate lawsuits with friendly plaintiffs and rely on ideologically aligned judges, every law could become a product of this collusive triangle. For example, a left-wing President could collude to invalidate voter ID laws, claiming they’re discriminatory, while a right-wing President could target environmental regulations as unconstitutional. The result? Laws would reflect the whims of whoever controls the White House and the judiciary, not the will of the people. Scalia’s dissent emphasized this mutual destruction, urging the Court to let “the People decide” through democratic processes. He noted vibrant state-level debates, such as North Carolina’s 2012 vote to uphold traditional marriage (61% to 39%) and Maryland’s vote to allow same-sex marriage (52% to 48%), as evidence of democracy at work (Id.).
This threat should alarm both conservatives and liberals. A system where laws are made by collusive lawsuits, not elections, leaves no one safe. If a President can stack the courts and orchestrate cases, the checks and balances of our Constitution collapse, replaced by a form of judicial tyranny.
President Trump’s Dilemma: Destroy or Deploy
President Trump faces a stark choice. He is under siege from left-wing lawfare groups and judges who impede his agenda, from immigration enforcement to deregulation. Yet, unlike Obama, Trump has not colluded with right-wing legal groups to counter this onslaught. The Windsor precedent offers a tool to fight back, but Scalia’s warnings suggest it’s a Pandora’s box best closed.
If Trump chooses to use the tactic, his Justice Department, led by Attorney General Pam Bondi, could coordinate with friendly plaintiffs in strategic cases. For instance, if the deep state refuses to release the Kennedy assassination or Epstein files, the DOJ could support a Freedom of Information Act (FOIA) lawsuit in a favorable jurisdiction, agreeing with the plaintiff’s legal theory to force disclosure through discovery. Such lawsuits could compel agencies to produce documents, emails, and testimony, exposing hidden truths about government misconduct. Other targets could include:
- January 6 Defendants: Civil suits against the Bureau of Prisons for inhumane treatment or the DOJ for selective prosecution, revealing political targeting.
- FBI Misconduct: Lawsuits alleging illegal surveillance or entrapment, forcing the agency to disclose its practices.
- Censorship Collusion: Cases against Big Tech and government officials, uncovering public-private partnerships that silenced conservatives.
Discovery in these cases could surpass investigative journalism, bypassing FOIA denials and redactions to deliver transparency. Scalia noted the power of “concrete adverseness” to sharpen constitutional questions (Id. at 2687), and Trump could leverage this to let the public judge the deep state’s actions.
However, Scalia’s dissent implores a higher road: ending this practice altogether. He argued that the Court should have dismissed Windsor to preserve democracy, warning that enabling such collusion “pawns” the Framers’ gift of self-governance (Id. at 2711). Trump and the Republican Congress should explore legislative or judicial reforms to close this loophole, such as requiring the Executive to defend all laws or limiting courts’ ability to hear collusive cases. This would prevent mutual destruction, where both sides escalate lawfare until democracy is a hollow shell.
A Call to Action: Heed Scalia’s Warning
The Windsor tactic is a double-edged sword. Democrats opened this Pandora’s box, and Trump must decide whether to wield it or destroy it. Scalia’s dissent offers a clear warning: the preferable course is to end this practice, as it threatens the very foundation of our republic. If Trump cannot dismantle it, he should at least use it to expose the deep state’s secrets, letting the people decide through the transparency of truth. As Scalia lamented, “We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution” (Id. at 2711). Trump has a chance to honor that vision, restoring the people’s voice before the Windsor tactic ends democracy for good.
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