OH. WOW. I actually called this exactly right in my post yesterday—this being, well, this. [Inadvertently-omitted link to court opinion inserted. H/T Dan Crawford.] Specifically: Roberts’ 5-4 opinion today in Shelby County, Ala. v. Holder, the Voting Rights Act case that I discussed, and predicted the outcome of, in that post yesterday.
Regular AB readers might recall a recent post of mine excoriating an article on Slate by University of Chicago law professor Eric Posner concerning a Fourth Amendment search issue. But Posner, who along with his father, prominent federal appellate judge Richard Posner and two others, is blogging on Slate this week in its annual final-week-of-the-Supreme-Court-term discussion, and he’s posted this spot-on analysis and bald criticism of the Roberts opinion in Shelby County:
Chief Justice Roberts’ opinion in Shelby County v. Holder, the Voting Rights Act case, is a pretty lame piece of work. There is a longstanding constitutional norm of judges deferring to Congress. Courts strike down laws when they violate rights or exceed Congress’ power. But Section 5 of the Voting Rights Act, which requires nine states in the South (and other scattered places) to get approval from the Justice Department before changing their election laws, doesn’t violate anyone’s rights. It’s the type of legislation specifically authorized by the 15th Amendment of the Constitution, which says the right to vote “shall not be abridged” because of race or color. Roberts says that the singling out of Old South states, for what’s called “preclearance” by DoJ, makes little sense now that blacks are as likely to register to vote as whites in those states, or nearly so. But Congress passes hundreds of statutes that are based on weak evidence, and courts routinely uphold them. Roberts doesn’t even try to argue that the costs imposed on states by the preclearance part of the Voting Rights Act exceed the benefits for people who would otherwise be deprived of the vote, which is what would be minimally necessary to show that the law does not advance the public good.
Roberts focuses on the offense to the sovereignty of states and a newly invented idea he calls the “fundamental principle of equal sovereignty.” State sovereignty means that the federal government should not intrude on political decision-making of states, including, Roberts says, their election laws; equal sovereignty means that when it does, it should intrude equally—on all of the states to the same degree.
But neither of these principles can explain where Roberts ends up. The idea of state sovereignty is riddled with exceptions and is largely a joke these days. The federal government calls the shots, and the states obey, in the area of elections as much as in any other. Roberts accepts the constitutionality of Section 2 of the Voting Rights Act, which forbids states to discriminate against minority voters and in this way also intrudes on state control over their elections. (Section 2 wasn’t at issue in the case the court decided Tuesday, so it’s alive and well. But it relies on lawsuits, not preapproval by the Justice Department, to ensure the rights of minority voters.) If Section 2 does not violate the Constitution, then what is special about Section 5—which also forbids discrimination? From the standpoint of state autonomy, Roberts’ argument does not wash.
That leaves the “fundamental principle of equal sovereignty,” the idea that Congress may not single out certain states for special burdens. Yet Roberts is able to cite only the weakest support for this principle—a handful of very old cases that address entirely different matters. None of the usual impressive array of founding authorities show up in his analysis, even though the founding generation took state sovereignty much more seriously than we do today.
Posner follows that with this priceless deconstruction:
Still, it is worth looking at this principle. What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play? In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you can’t discriminate against a minority population that doesn’t exist. Many more Section 2 claims will be brought in Alabama than in Montana, and so even under Section 2, Alabama has vastly less control over its election law than Montana has over its election law. Yes, Section 5 places an incremental burden on Alabama—but on top of an already unequal burden that Roberts cheerfully tolerates. So whatever explains the court’s decision today, the putative principle of equal sovereignty can’t be it.
Posner raises a point that occurred to me after the oral argument in Shelby County, concerning what appeared (as I said yesterday), accurately, to be the intention of the Fab Five to create a new constitutional doctrine by which states, just like people, are entitled to the equal protection of the law. It occurred to me that under this new states-are-people-and-therefore-entitled-to-equal-protection doctrine, states (most of them Democratic-leaning) that pay more to the federal government than the state and its residences receive in federal funds could challenge the constitutionality of the laws that provide states (most of them Republican-leaning) and their residents with more federal funds than the state’s residents pay in federal taxes.
But Roberts gets around this—or tries to—by effectively saying that the Tenth Amendment, which he says grants states the right to do whatever they want unless one of the Constitution’s “enumerated powers” (the powers that the Constitution expressly grants to the federal government, and which were central in last year’s Obamacare litigation) provides otherwise. Thus, he says, the Tenth Amendment trumps the Fifteenth Amendment, notwithstanding that the Fifteenth Amendment was added to the Constitution after the Tenth Amendment was.
Roberts, no numerologist, does nonetheless superficially finesse this by claiming that, well, yah, sure, maybe the Fifteenth Amendment’s Section 5 could be considered an enumerated power— although he doesn’t actually call it an enumerated power, because rightwing mantra dictates that only the powers enumerated in the Constitution’s Article I (which creates the Congress) qualify as authentic enumerated powers. But, y’know, the real purpose of the section of the Fifteenth Amendment, which authorizes exactly the type of legislation that section 4 of the VRA is, is prospective—that is, to make this a better country going forward. And, well, how can you make the country a better place when you’ve based your law authorized by the Fifteenth Amendment on outdated evidence, for heaven’s sake?!
The fundamental principal of equal sovereignty is nowhere, even arguably, in the Constitution. But now, well, states are people, my friend.
Of course, as Posner suggests, and as I point out, if states are entitled to equal protection of federal law, then hopefully New York, Massachusetts, Washington state, Illinois, Connecticut and Vermont will join together to challenge the constitutionality of the federal laws that serve as a financial funnel to Louisiana, Texas, Mississippi, Florida, and Alabama—including Shelby County. Roberts’ opinion notwithstanding, it is itself a violation of equal protection to limit this new equal-protection-of-person-states (state personhood) to state “sovereignty” prerogatives. Even though that’s what serves the interest of the Republican Party.
This is an outrageous new doctrine and it is part and parcel of the Reagan-era legal cabal’s really wacky, really aggressive states-are-people jurisprudence juggernaut, which conveniently trumps both federal and individuals’ (actual humans’) rights to the extent, but only to the extent, that it matches these folks’ political or ideological preference. The Tenth Amendment, not incidentally, reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
A hallmark of their brand of states’-rights jurisprudence, filled with downright bizarre Court-created doctrines, as it is, is that the post-Civil War era Reconstruction amendments—the Thirteenth, Fourteenth and Fifteenth amendments—are part of the Constitution and its delegation of federal authority only when state or local legislatures or administrative agencies or government bodies infringe upon, say, the right of an upper-middle-class high school senior to be admitted to her state college of choice on the basis of her grades and SAT score. Or upon the rights of a real estate property owner to do whatever with, or on, his property. Or upon gun-ownership rights.
You get the idea. We all do.
UPDATE: I’m grateful to a Slate front-page editor for his or her decision to feature Eric Posner’s post at the top of Slate’s opening page—and to caption the post to highlight Posner’s point that the opinion is based on a flawed and outright made-up legal concept, a newly fabricated, wacky legal doctrine that has no conceivable actual basis in the Constitution. None whatsoever.
The opinion is as blatant a political artifice as was Bush v. Gore.