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The Fundamental Principle That States Are People, My Friend

OH. WOW.  I actually called this exactly right in my post yesterdaythis 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.

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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.

 

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Justice Kennedy Reads Angry Bear! Yup. There’s No Other Plausible Explanation for His Affirmative Action Opinion Today.

A longer-than-planned post on today’s Supreme Court opinion on state-college-admissions affirmative action programs.  (I’m up in Michigan’s Thumb region, sans cable and regular web service, and using my phone as a Wi Fi hotspot via the PdaNet app. I can attest that PdaNet is awesome.)  Here it is:

The headline on Politico reads, “SCOTUS passes on big affirmative action decision.”  That headline does not really sum up the opinion,* but I’m not surprised at the ruling—either its result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.  It’s a (very) safe bet that neither the result nor the delay in deciding the case was the result that the Fab Five had planned on when they agreed to hear the case and when the case was argued there.

But, well, stuff happens.  And, first things first.  And first—and foremost—for these folks, I believe, is the gutting of two key, interdependent sections, Sections 4 and 5**, of the Voting Rights Act (VRA), because that is the way to help Republicans in national elections.  And the stuff that happened in this instance was the oral argument at the Court back in March (I think) in Shelby County, Alabama v. Holder, the case that the 5-4 crowd has planned to use as its “vehicle”—a military tank—to gut that section of the VRA.

As I wrote in AB back then, comments that Kennedy made during the argument would, if adopted by him (he will be the author of the opinion in Shelby County; bet on it, quickly, tonight, before the opinion is released tomorrow!) would inescapably conflict, in two respects, with the ruling that Kennedy planned to write in Fisher.  And, yes, although absolutely everyone but me said Roberts would write the opinion in Fisher, Kennedy was the author of the Fisher opinion.  (Okay, one of his law clerks was, but without attribution, of course.)

During the argument in Shelby County, Kennedy made two things clear: First, that states are people, too (just like corporations!), and therefore are protected by the Fourteenth Amendment’s equal protection clause.  Funny, but who knew that the Fourteenth Amendment, whose express and sole historic purpose was to protect individuals (i.e., people) from denial of due process of law and the equal protection of the law by states.  Violation of constitutional rights by states, not by the federal government against states, which heretofore had no constitutional due process or equal protection rights.  Originalism and textualism only matter sometimes.

Second—and this is, I think, as I said in my post last spring, the real key to the conflict between what these five wanted to do in Fisher and what they want to, and almost certainly will, do in Shelby County—is that Kennedy and Scalia think that now that African Americans have real political power, they aren’t entitled to special protections.  Hey, Obama won, didn’t he?!  They can just use their political power to ensure that there are no improper barriers to voting and to having their vote not be improperly and deliberately diluted into meaninglessness in federal, state and local legislative elections.  Hey, Obama won, didn’t he?!

Which, as I said in my earlier post, raises the obvious question in Fisher of why the white UT applicants can’t just use their political power to have the legislature change the college-admissions statute.  Unless, of course, the parents of white upper-middle-class high school students (which is what plaintiff Abigail Fisher was) have less political power in Texas than African Americans do.

Kennedy suggested during the Shelby County argument that states and localities could honor the fact of their history of racial discrimination by, say, erecting a statue of a pre-civil-rights-era black citizen who was known to have been improperly denied access to the polls.  I suggested in my AB post that that could work as the solution in Fisher, too: a statue of Abigail Fisher, along with an explanatory metal placard, in the UT’s quad.

I said at the time that I thought it was poetic justice that Fisher and Shelby County were being decided in the same Court term.  The poetry, if not the justice, will become apparent, I’m pretty darn sure, when the opinion in Shelby County is released.  Probably tomorrow, probably along with the two same-sex-marriage opinions, probably to be drowned in news coverage by the tsunami of reportage and commentary on the latter cases.

Will I be humbly eating some of these words tomorrow?  We’ll see.  I mean, you never know.  Maybe Kennedy doesn’t read Angry Bear, after all.

UPDATE: SCOTUSblog’s Lyle Denniston just posted an indepth summary and analysis of Fisher, here.

*Originally, this sentence read, “That about sums it up, and I’m not surprised, either at the result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.”  I have not yet read the opinion (and probably won’t do so today), and was relying on the very early reports about it.  But I’ve amended that sentence in light of Lyle Denniston’s detailed article.  The bottom line, I think, is that the likely substance of the  impending 5-4 opinion in Shelby County saved affirmative action, for now, to the extent that Fisher did save affirmative action.

SECOND UPDATE: Here’s NYT Supreme Court correspondent Adam Liptak’s take on Fisher. He points out that the opinion is brief.  Just think of all that time these folks wasted in writing the original, pre-Shelby-County-argument, drafts of the opinion, the concurrences and dissents.  Time that the justices could have used instead to give a few more speeches at law schools and nonprofit organizations during their many, many, many fall, winter and spring breaks, some of them several weeks’ duration.  Their part-time job is exhausting, I realize, and they could have used the additional diversion (and speaking fees and junkets).  Oh, well.  Maybe next year, when there’s another affirmative action case on the Court’s docket.

THIRD UPDATE: **Originally, that sentence said that one key section, Section 5, of the VRA was at issue, and did not mention Section 4.  The Court issued its 5-4 opinion, written by Roberts, a few minutes ago, and SCOTUSblog says the opinion strikes down Section 4 but says the court makes no ruling on Section 5, and that Ginsburg says in her dissent that the striking down of Section 4 renders Section 5 dormant.  Section 5 is the section that requires certain states, counties and localities to first “pre-clearance” from a federal court or from the Justice Dept. before altering voting districts or other access-to-the-polls and weight-of-a-vote matters.  Section 4 is the section that creates the formula for determining which states, counties and localities are subject to the Section 5 pre-clearance requirement.

The effect of striking down Section 4 is to nullify Section 5 until Congress enacts a new formula to replace the now-void Section 4 one. Or until hell freezes over.  Whichever comes first.

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Anthony Kennedy and Antonin Scalia Say the Confederacy Won the Civil War and the Purpose of the Reconstruction Amendments Was to Reinforce Rather Than Diminish State Sovereignty. (Except on Affirmative Action, the Second Amendment, and Real Estate Property “Takings.”)

Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”
A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act

Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language.  It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 1, but not Section 5, also, as it happens, is at issue in the other culture-wars blockbuster Supreme Court case this term, Fisher v. The University of Texas, a.k.a., the big affirmative-action-in-state-university-admissions-policy case.

John Roberts will write the 5-4 opinions in both cases.  In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2.  It said (and the 5-4 Court majority will confirm in Fisher) still says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns.  Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns.  And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law.  Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.

These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term.  Christmas will come in May and June this year.  Or at least Santa Claus will.

Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list.  Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list.  That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.

Who knew?  Other than the Republican far-right, that is?

Not me, and probably not you.  You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states.  But, then again, you also probably learned that the Confederacy lost the Civil War.  Even those of you who went to upscale suburban schools or to fancy private ones.  Well, those of you who took that class pre-1980s, anyway.  But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.

Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014.  Only an unexpected vacancy on the Court will do that.

Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.  Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County.  Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue.  And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.

But these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them apply only to extraordinary procedures enacted by Congress. They do not apply to extraordinary procedures in the Supreme Court.  Such as the one in which the Reconstruction Amendments are rewritten, right along with Civil War and Reconstruction-era history.
I do have a suggestion for Texas, though, just as I have one for Alabama, since, when Texas, like Alabama, wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.
Again here, I suggest a statue–this one honoring all the white Texas high school seniors who narrowly missed the cut to gain admission to their state’s flagship university since the current state statute and its predecessor statute were enacted.

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