Balkinization: Shelby County

Comments:

I think even a pretense over judicial restraint by the conservative wing on the Court is going to be hard to maintain. We've got an 'equal sovereignty of the states' doctrine with potential to threaten much long thought settled law, a 'right to individual armed self defense' that is keeping courts busy around the nation, and an ever expanding takings right doing the same.

# posted by

Mr. Whiskas : 12:04 PM

I did a search of the "equal state sovereignty" principle to see what exactly was said about it. Seems the majority basically assumes the point.

As noted by Ginsburg, it was used in the past in respect to states entering the union. States can be treated differently overall. State residency is not shall we say a suspect class, is it?

Upholding Sec. 4 would have been the "conservative" thing to do, including realizing Congress was not working on a clean slate each time, but was conservatively accepting existing law and remedies. On some level, the majority can be accepted here, but a 5-4 overrule of a co-equal branch on a matter explicitly its job warrants more "constitutional avoidance" than that.

# posted by

Joe : 12:27 PM

One of the problems with conservative stare decisis jurisprudence is that these judges decline to reverse erroneous precedent and instead engage in often nonsensical workarounds or compromises. This is one of those cases.

Roberts should have held that the Warren Court in Katzenbach erred in holding that Congress could limit the VRA to a subset of states and found Sections 4 and 5 of the VRA unconstitutional on that basis.

Of course, like so many other Warren Court decisions, Katzenbach was a political opinion based upon the realization that Congress only enacted the VRA because Section 4 and 5 would not be applied to the states of the members voting for the VRA.

# posted by

Bart DePalma : 1:07 PM

I think the Chief Justice struck down Section 4, and only section 4, based on a reasonable construction of the language of the amendment that authorized it in the first place: Congress may enforce....by appropriate legislation. The coverage formula was appropriate when originally enacted, and arguably so every time it has been upheld by the Court in the past. However, Congress was put on notice in recent years that what was once appropriate may no longer be so.

Section 5 is still in force, awaiting a new formula to determine the jurisdictions it will cover. Congress should pass a new formula that is based on recent history only, and self-updating (i.e., covers jurisdictions that have lost Section 2 or Section 5 cases in the last "n" years, and only those jurisdictions). It's a pretty good result, and very Roberts in its scope.

The best little bit comes on page 20, when Roberts quotes an earlier decision:

(“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”)

Look for language like this in an opinion striking down DOMA Section 3 tomorrow morning. The 14th is just as "transcendent" of its original intended application as is the 15th - and the fact that ultra-conservative Roberts saw fit to include that quote may be a bit of foreshadowing, just like the Thomas concurrence in the ICWA case that basically disavows any Federal power to touch the subject of domestic relations. I think these two decisions released today show us something about the lineup we'll see tomorrow.

# posted by

Don Smith : 2:01 PM

Another take is that Congress should have broad deference as a duly elected political institution to determine what is "appropriate" and that if there is "reasonable" disagreement on their approach, including working off what is in place instead of starting from a clean slate (not generally how we do things), they should be upheld.

The quote seems bland and both sides can use it. As to foreshadowing, perhaps. Some thought the Arizona voting case being 7-2 foreshadowed something too. Maybe it did. What exactly might have been unclear.

# posted by

Joe : 2:08 PM

When the Constitution uses terms that are subject to interpretation, like "appropriate", or "necessary" and "proper", that leaves room for a controversy - and kicks the decision to the Supreme Court. I'm sure if Congress had actually based its formula on something more recent than a generation ago the result might have been different.

# posted by

Don Smith : 2:11 PM

Sounds like a good start. Using a formula that’s over 40 years old in deciding which jurisdictions do or do not need to submit to preclearance does not strike me as a formula intended to prevent jurisdictions from preventing otherwise eligible voters from being able to vote on the basis of race or color. It strikes me as a practice of automatically treating some States as being less sovereign than others well, because we don’t like them very much and because we can.

# posted by

Thorley Winston : 2:41 PM

""appropriate", or "necessary" and "proper" are indeed found in the text of the Constitution. What is not is "equal sovereignty of the states."

# posted by

Mr. Whiskas : 3:05 PM

All constitutional questions on some level can involve a "decision to the Supreme Court." There, however, are various levels of scrutiny there, from minimum (much legislation) to maximum (e.g., race).

You spoke of a "reasonable" construction. If you want to ratchet it up to a "compelling" one, go ahead, but if there is a true "reasonable" ground of debate, I think Congress here should get much deference.

The dissent and Congress itself explained that merely what happened forty years ago is not what led to the continuance of a certain formula. Ongoing reasons were in place.

As to what the USSC would do, who is to know. They struck down congressional legislation in historical numbers from the Rehnquist years on even when here and now events motivated the legislation. The "equal sovereignty" rule would seem to make any number of legislation problematic as the OP suggests, even if based on totally current data.

# posted by

Joe : 3:06 PM

"ecause we don’t like them very much and because we can."

How about "because they persistently enslaved, segregated and oppressed their minorities for nearly twenty decades, causing the federal government to intervene several times (once militarily) in response?"

Sheesh, Graber and Fishkin are correct, it's like American history before 1970 has disappeared to these folks.

# posted by

Mr. Whiskas : 3:10 PM

Neither is "separation of church and state", or a right to something called "privacy", but that doesn't stop reasonable jurists from using those terms to describe concepts that are taken from the Constitution, synthesized from its structure, historical context, and actual content. Or such wonderful concepts as judicial review, executive privilege, etc.

Without the background principle of "equal state sovereignty", we'd be living in Animal Farm, not the United States of America.

# posted by

Don Smith : 3:11 PM

How about, "Because they long ago did so"? Because that's what a criteria based on 40 years ago amounts to. Congress has simply kicked the can too far down the road, time for them to base the law on present circumstances, not history.

# posted by

Brett : 3:17 PM

Thoughts on a 24th Amendment challenge to voter ID laws where the mandate requires the PURCHASE of an ID? If the individual mandate counts as a tax for the purposes of the Affordable Care Act, then wouldn't a voter ID mandate constitute a tax as well if those IDs are not free? And if so, does that tax violate the 24th Amendment: "The right of citizens of the United States to vote... shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax."

# posted by

ConLove : 5:05 PM

As to what the USSC would do, who is to know. They struck down congressional legislation in historical numbers from the Rehnquist years on even when here and now events motivated the legislation.

When you say “historical numbers” what actual number of laws did they strike down? More than a hundred? More than fifty? And how does that compare to the number of laws that were created during that same time?

Seems to me that the more legislation Congress creates and the more areas that the federal government intervenes (including those that historically had been reserved for the States), the greater the likelihood is that the Court will say “no, you can’t go there (in that way).”

# posted by

Thorley Winston : 5:17 PM

ACA in various ways treated it as a tax, including connecting enforcement to the tax system. It isn't just that functionally it was a tax. It was treated as one.

I personally think id requirements are a sort of "tax" and if nothing else inhibit the right to vote in ways involving wealth and often race, so are problematic. But, the courts have not quite seen it that way though in Crawford the Court left an opening if it was bad enough.

As to my comment as to the Rehnquist Courts, it's clearly a relative thing, but Congress didn't start to pass lots of laws in the 1980s and 1990s. It is partially a matter of the mindset of the Court in question, particularly when 5-4 rulings are involved, as they often were.

The question as to "why" is a good one, but then again any increase or decrease will not be for no reason. There will be reasons.

# posted by

Joe : 5:41 PM

"Without the background principle of "equal state sovereignty", we'd be living in Animal Farm, not the United States of America."

Captain Hyperbole strikes again.

As to the substance of your post, if you'd like to put the equal sovereignty doctrine with privacy, be my guest.

""Because they long ago did so""

I wonder why the Court, rather than Congress which can hold hearings and make findings, is the one to decide when it has been 'too long ago.' It certainly seems reasonable to me to assume that a culture that perpetuated those horrors for twenty decades might still have some lingering effect four decades later...

# posted by

Mr. Whiskas : 6:27 PM

The news today bears out the fact that the lingering effects remain. Congress still needs to actually do its job, and enforce the 15th Amendment by "appropriate legislation" - meaning that is suited to the circumstances as they exist currently, based on up-do-date information, not what happened before many of them were old enough to vote.

All they need to do is pass a new formula, based on things that have happened in recent memory. Say, a history of successful Section 2 enforcement actions, or failed preclearances under Section 5. The deterrent effect will remain - one violation, and you're covered again for the foreseeable future.

# posted by

Don Smith : 6:36 PM

But that would require them to do some actual work! They'd have to think about it, take responsibility for whether they got it right.

Hell, they might even have to read the bill before voting on it. The horror!

# posted by

Brett : 7:39 PM

If they were doing their job right, it would be no problem to read the bill - it would be a single subject bill, of less than two pages, with an up or down vote on the floor, so members could be held accountable for their vote, without the ability to say they voted against it because of something else that was in there that they didn't like.

I think we need a constitutional amendment to force the legislative branch to keep bills to a single subject, and reject any amendments that aren't germane. That's the problem the Framers gave us by allowing the House and Senate to make their own rules.

# posted by

Don Smith : 7:42 PM

"by "appropriate legislation" - meaning that is suited to the circumstances as they exist currently, based on up-do-date information, not what happened before many of them were old enough to vote"

This assumes that it is "inappropriate" to suppose that jurisdictions that engaged in the most egregious and tenacious discriminatory actions for twenty decades might, a mere four decades later, still be deserving of greater scrutiny. I see no reason for that assumption.

# posted by

Mr. Whiskas : 8:24 PM

"I think we need a constitutional amendment to force the legislative branch to keep bills to a single subject, and reject any amendments that aren't germane. That's the problem the Framers gave us by allowing the House and Senate to make their own rules."

Great idea. We could file it with the quorum requirement, and all the other constitutional rules that don't get enforced because nobody gets to be a federal judge without the Senate liking them.

Still, I suppose it's worth a shot, when we have that Convention.

# posted by

Brett : 6:54 AM

Should the Framers have specified rules for each of the House and the Senate or merely excluded the "rules" provision? If the former, consider what the Framers' rules might have looked like, considering the newness of the bicameral legislature; would the Constitution have turned into a Code? If the latter, might the result have been chaos? Keep in mind that the Constitution (and the Articles they replaced) were in a sense experimental. Could the Framers have anticipated the housekeeping needs of Congress to function long into the future with manifest destiny on the horizon, or did they wisely leave that to the House and the Senate and the role of voters in a republican form of governance? Perhaps Don and Brett could collaborate with a proposed constitutional amendment to determine the brightness of that idea.

# posted by

Shag from Brookline : 8:41 AM

Well, the point is that they DIDN'T give the House and Senate unlimited discretion as to the rules. They required a quorum to do any business beyond compelling the attendance of the remaining members, to point out just one constitutionally mandated rule that's being defied. They required super majorities for specific subjects, such as constitutional amendments and treaty ratification.

# posted by

Brett : 7:48 PM

Brett's point is blunted in Article I, Section 5, by:

"Clause 2: Rules

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member."

Brett's reference:

"They required super majorities for specific subjects, such as constitutional amendments and treaty ratification."

seems to suggest that he thinks constitutional amendments and treaty ratification are procedural rules.

As usual, Brett avoids the questions.

# posted by

Shag from Brookline : 6:35 AM

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but a 5-4 overrule of a co-equal branch on a matter explicitly its job warrants more "constitutional avoidance" than that.

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# posted by

Unknown : 4:05 PM