Relevant and even prescient commentary on news, politics and the economy.

John Roberts Unwittingly Paves the Way for Eventual Wholesale Liberal Judicial Repeal of Statutes, Too

Chief Justice Roberts’ attempt to portray his decision in McCutcheon v. FEC as minimalist actually shows just how far from minimalist it is. According to the Chief Justice, no one should worry about the consequences of the Court’s decision because “there are multiple alternatives available” that would accomplish the Government’s asserted interest without, in the majority’s view, unnecessarily abridging First Amendment rights.  It would be a comforting thought if there were any truth to it.  But as Rick has pointed out, there is no chance that these alternatives will come to pass: Congress is not going to pass any new campaign finance laws (this Congress barely passes any laws at all, as the Chief surely knows), and the FEC is not going to strengthen its enforcement of existing laws (Republican commissioners on the FEC are no more in favor of campaign finance regulation than Republican members of Congress).

But what today’s Congress would do tells us little, if anything, about what the Congress that enacted the aggregate contribution limit would have done had it known that the Supreme Court would conclude that aggregate contribution limits are unconstitutional.  Would it have adopted one or more of the Chief’s proposed alternatives?  Quite possibly.  And that fact illustrates one of the most problematic, but also overlooked, aspects of judicial review—that it can produce disruptions to democratic preferences that are not constitutionally required.

— The False Minimalism of John Roberts, Brianne Gorod, Election Law Blog, Apr. 8

John Roberts’ Apr. 2 opinion in McCutcheon v. FEC is the opinion that keeps on giving, to liberal legal geeks, anyway. The opinion contains so many controversial (and, in my opinion, downright weird) statements–redefinitions of common English-language words and phrases, sophistic purported analogies, tautologies, and jaw-droppingly overt hypocrisy–that law professors, legal journalists, and hobbyist bloggers (like me!) no sooner finish writing about one statement in the opinion than we think of another aspect of the opinion that we want to write about.

I myself am pretty much McCutcheoned out by now, but before I take a break from it, I want to make two suggestions to progressives.  One is that they look ahead to when the current ideological majority no longer holds the majority–Ginsburg and Breyer are not the only justices who are aging, Ginsburg is not the only one who has health problems–and start selecting various statutes they dislike, and plan to challenge them as unconstitutional. As Gorod writes:

Judicial review is generally (and rightly) justified as an integral part of our constitutional system; it ensures that laws and regulations are consistent with our nation’s highest law.  In McCutcheon, the Court’s majority claims that the aggregate contribution limits cannot stand because they violate the First Amendment.  Whether one agrees with that conclusion or not (and as I and others have written, there are many reasons to disagree with it), most would find unobjectionable the general principle that laws that are inconsistent with the Constitution should not stand.  But as I have written elsewhere, judicial review often produces disruptions to democratic preferences that are not constitutionally required, and that is a much more significant problem.

Gorod, and others, detail a hallmark of Roberts’ strategy: Striking down as unconstitutional some key portion of an ideologically charged statute, and recommend possible substitute statutes and pronounce the ruling therefore minimalist although the substitutes could not be enacted in the current political climate and under current Citizens United-effectuated funding realities.  Roberts is fabricating constitutional grounds upon which to effectively repeal statutes enacted by earlier congresses. But by removing the institutional barriers to judicial repeal of statutes via semantics and gimmickry, he’s establishing precedent for progressives to do the same down the road.

There are a number of federal statutes I can think of that are excellent candidates for eventual liberal judicial repeal, now that the standard for judicial repeal has been so starkly and plainly lowered.  But one easy one is the Federal Arbitration Act, which, as written, is not unconstitutional, but which, as effectively rewritten by the 5-4 crowd, arguably is.  But there’s no longer any need for progressive justices, once they gain a majority, to limit themselves to striking down statutes that are, or are being interpreted in ways that make them, objectively or even arguably unconstitutional.  All that’s necessary going forward is a redefinition of a common word or phrase, and a transparently false analogy or two, and … voila!  What Roberts thinks is clever manipulation, I view as playing with fire.

Including backfire.

In another post, I’ll suggest that Congress or the SEC can prohibit publicly-traded corporations from making political expenditures (or, eventually, because that soon will become necessary, direct corporate campaign contributions) unless the corporation first gets approval from a majority of its shareholders.

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Cross-posted at The Law of the Jungle.

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John Roberts Introduces a New Favorite Tactic This Term: Sleights-of-Hand Analogies

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.’”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, Mar. 26

About which I wrote a post here the next day titled: “Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes.  Roberts does, too!  (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.)

Yep. Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.

What I was referring to was this, from that post of  Kapur’s about the argument on Mar. 26 in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the two consolidated cases challenging as violative of the First Amendment’s free exercise clause the ACA’s employer contraceptive-coverage mandate, in which a threshold issue is whether corporations can exercise religion and therefore are “persons” within the meaning of the Religious Freedom Restoration Act:

After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

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What the Supreme Court’s refusal today to agree to decide whether to strike down the federal statute that bars corporations from making contributions directly to candidates and political parties might suggest about the outcome of Hobby Lobby

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

– John Roberts, McCutcheon v. FEC, Apr. 2, 2014

My reaction when I read that last: OMG! You mean it’s finally occurred to Roberts and Kennedy that CEOs of publicly-held corporations don’t actually necessarily share the same political views as all those other members of these “associations of citizens” from whom the CEO, er, the corporation, derives its First Amendment speech rights?  (And religious rights, too, although that’s another case, isn’t it?)

Actually, that was a comment I posted to a Slate article last week about McCutcheon that included the above quote from that opinion.  The religious-rights cases I had in mind were, of course, the Hobby Lobby Stores v. Sebelius and Conestoga Wood Specialties v. Sebelius, the for-profit-corporation ACA-contraceptive-mandate cases, which were argued at the court on Mar. 25.

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No, Mr. Kleiner, John Roberts showed that he knows perfectly well how money works in politics.

An article by Sam Kleiner posted yesterday on the New Republic’s website is titled “John Roberts shows he has no idea how money works in politics.”

Mr. Kleiner must not understand the real purpose of the Conservative Movement’s decades-long crusade against campaign-finance laws.  In fact, Roberts showed in McCutcheon v. FEC (yet again) that he knows perfectly well how money works in politics.

If you get my drift.

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The REAL news from the McCutcheon v. FEC opinion

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

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UPDATE: Reader Alex Bollinger wrote this morning in a comment to this post:

Remember when the Republican SC justices (no, I will not pretend they’re apolitical) wrote an opinion in Bush v. Gore that there’s no right to vote? And that Scalia said, several times in oral arguments on that case, that no where in the plain text of the Constitution does it say that there’s a right to vote? This finding was fundamental to their argument – if there’s no right to vote, then they could discuss and bend state election law as they’d like without respect for voters’ participation in democracy.

I’m glad these folks finally found that right! Too bad rights magically disappear and reappear based on whether they further Republican Party goals.

To which I responded:

Alex, thank you so much for reminding me that Scalia said in Bush v. Gore (and elsewhere) that the Constitution provides no right to vote!  No, no, they didn’t recognize a constitutional right to vote, in McCutcheon. They just said the obvious: that there is no right more basic in our democracy than the right to participate in electing our political leaders, because “participate in electing our political leaders” means only campaign contributions.

Democracy is a synonym for capitalism, Alex.  It says so in the First Amendment.

And “hypocrisy”–bald, jaw-dropping hypocrisy–is a synonym for the Conservative Legal Movement.

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OK, so what exactly does the APPEARANCE of quid pro quo corruption look like? Y’know, as opposed to the real thing.

John Roberts wrote in yesterday’s opinion in McCutcheon v. FEC that Congress may still “regulate campaign contributions to protect against corruption or the appearance of corruption.”  He then limited “corruption” to an actual quid pro quo.

Which raises the question of what, exactly, the appearance of quid pro quo corruption looks like.  Y’know, as opposed to the real thing.

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Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race. (Except, that is, when the discrimination favors whites over racial minorities.)

 

The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race.

— Chief Justice John Roberts, Jun. 28, 2007, writing for a four-justice plurality in Parents Involved in Community Schools v. Seattle School District No. 1.

Given that statement of his own belief, and his concomitant pronouncement that discrimination by a state or local government on the basis of race necessarily violates the Fourteenth Amendment’s equal protection clause and that therefore the federal judicial branch is entitled to strike down as unconstitutional any law or policy that discriminates on the basis of race, I expect that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.

Let me explain.  Or, better, let me borrow part of the nicely succinct explanation in an editorial in today’s New York Times, which begins:

Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court is facing this week in the case of Schuette v. Coalition to Defend Affirmative Action.

Some background is in order.  In 2003 the Supreme Court upheld as constitutional the race-conscious admissions policy at the University of Michigan law school.  But at the same time, in a companion case, the court struck down a slightly different affirmative action policy for admissions to the University of Michigan’s first-year undergraduate class, as weighting racial minority status too heavily in order to attain more racial diversity.

In resolving these cases, the court applied its longstanding “strict scrutiny” test to evaluate the equal-protection constitutionality of these affirmative action programs, a test that originated in the 1940s as a constitutional protection under the equal protection clause for members of “suspect,” or “invidious” classifications.  Which did not include whites as a racial group, because, well, the purpose of the “strict,” or “heightened,” scrutiny under the equal protection clause was to protect politically powerless, stigmatized, possibly stereotyped, and historically discriminated-against groups.  Ordinary, everyday whites were the racial majority, not a minority, and clearly the most politically powerful racial group.

The strict-scrutiny standard, which is the highest level of what is now, at least formally, a three-tiered scrutiny hierarchy, requires that courts strike down laws or government policies that targeted suspect groups for negative consequences because of the invidious and immutable classification, initially concerning a fundamental constitutional right–the right to vote, for example–and then for any law or governmental policy, unless the law or policy serves a “compelling governmental interest”.  In which event the means chosen to accomplish the compelling governmental interest must be narrowly tailored so as to have no impact beyond what is minimally necessary.

Originally, the only other level of court scrutiny under the equal protection clause was “rational basis” scrutiny: as long as the government could state some conceivably rational, or legitimate, governmental purpose for the law or policy, the law or policy was fine.  “Rational basis” scrutiny, in other words, is another phrase for anything goes. Later, a middle tier was added–intermediate scrutiny–which applies to gender-based discrimination.

So the trick if you are challenging the equal-protection constitutionality of a law or government policy is to squeeze your discriminated-against class into the suspect-classification category. Which is hard to do when your discriminated-against class is the majority, and most politically potent, race.  But not so hard that it cannot be done, if you are 1980s-90s era Legal Movement conservatives at a time when 1980s-era Movement conservatives dominate the federal bench overall or at least hold a majority on the Supreme Court.  Madison Avenue-ishly marketed as reverse-racial-discrimination programs, race-based affirmative action programs were (and remain) on the Reagan-era-conservatives’ Legal Movement hit list.

So done, it was, initially in a 1986 case called Wygand v. Jackson, in which the court struck down as violating the equal protection clause a school board’s consideration of race in determining financially-necessitated teacher layoffs, holding that racial and national-origin diversity in the makeup of the teaching staff was not a compelling enough governmental interest to survive under the strict-scrutiny test, nor, the Powell opinion says, does the level of scrutiny “change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.”

Nor, the court’s majority held in 1995, in a case called Adarand Constructors v. Pena, does the extent of the political power of the discriminated-against group change the level of scrutiny.  The white owners of Adarand Constructors, Inc., challenged an affirmative action program for federal contractors as violative of the Fifth Amendment, which has a due process clause that applies to the federal government, but the Supreme Court has interpreted that due process clause to implicitly require equal protection, in the same way as the Fourteenth Amendment’s explicit and separate equal protection clause applies to (and only to) the states.  White-owned companies vying for federal (or state or local) government contracts, the court held, cannot be disadvantaged in the competitive application process for government contracts by an affirmative-action program seeking to increase the very low number of racial-minority-owned government contractors.

The Koch Brothers could win a reverse-discrimination lawsuit, should they ever apply for any government contract or other special treatment for their businesses through a competitive application process.  Or should their lobbyists ever fall short, and the Kochs learn that racial minorities get more business subsidies than the oil and gas industries.

Or should hell freeze over. But I’m speaking in jurisprudential theory here., not in political theory.

So the suspect category for qualification for strict scrutiny, regarding race, is simply race.  Nothing else. Whites get to piggyback on the strict-scrutiny discrimination standard, instituted specifically and narrowly to protect racial and ethnic minorities, by simple virtue of the fact that white is a race.

Oddly enough, last spring there was a moment when it looked like the lack-of-political-power criterion was about to be restored as a prerequisite to strict-scrutiny classification.  Not the historically-discriminated-against criterion; just the lack-of-political-power criterion.  But it was notable because it was at least one Conservative Movement justice–Antonin Scalia, I believe, and one other, Roberts, I think–who invoked it.  During oral argument in at least one of the two same-sex-marriage cases (I can’t remember whether it was in both or only in one), Scalia and, I think, another justice noted that homosexuals are no longer without political power, as evidenced by their success in enacting same-sex marriage statutes in a sew states and obtaining favorable court rulings in a couple of other states. This, the justice (or justices) suggested, maybe should defeat the claim that anti-gay laws should be analyzed for muster under equal protection jurisprudence using the strict-scrutiny standard.

After all, Scalia said, strict scrutiny under equal protection jurisprudence requires a lack of political power to try to get the law changed; Adarand Constructors, be damned! For the moment, anyway. (Or it requires a violation of a “fundamental” constitutional right–a constitutional right expressly proclaimed by the court to be a fundamental one, and only certain select ones are–which is the only type of claim of denial of equal protection, other than one based upon membership in a particular group, that prompts strict-scrutiny analysis.)  And anyway, Scalia pointed out, the sole purpose of the Fourteenth Amendment, back when it was drafted and then ratified, was to protect people who had been slaves, or who were descended from slaves, or who were, or whose ancestors would have been, slaves had they lived in a state south of the Mason-Dixon line.

Scalia is an originalist, after all.  And he apparently when he said that, he had forgotten that Abigail Fisher, the unsuccessful white University of Texas/Austin applicant who challenged the constitutionality of Texas’s mild affirmative action freshman-admissions system for its state universities, and whose case had been argued to the court last October and was still pending last spring, was white and a resident of an upscale Houston suburb. In his dissent in Grutter, Scalia had written, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception”.  He reiterated that sentence in a one-paragraph concurrence when Fisher was decided in late June, the same week as the same-sex-marriage cases were decided. Fisher went as far as it could to kill affirmative-action programs at state colleges and universities without overruling Grutter.  The petitioner, Abigail Fisher, Anthony Kennedy and Scalia both noted, had not actually asked the court to overrule Grutter, but instead had argued that Texas’s program went beyond what Grutter allowed.  And, since Fisher was not a campaign-finance-law case, the court decided not to go beyond what the petitioner to the court had asked it to rule.

And anyway, there was that pesky problem of arguing the narrowness of the application of the strict-scrutiny equal protection standard in Fisher and then, for Scalia, Roberts, Clarence Thomas and SamuelAlito, blithely reversing course two days later in dissents in one of the same-sex-marriage cases, United States v. Windsor, which struck down the federal Defense of Marriage Act.  Section 1 of the Fourteenth Amendment, the section that contains the equal protection clause, does not specifically state that it applies to gays.  But neither does it say that its protections are limited to African Americans, or, for that matter, to racial discrimination. It says it pertains to all persons. Gays are persons.

But even if Scalia’s originalist view is accepted and the court suddenly reverts back to before the era of modern equal protection jurisdiction began in the early 1940s, and a majority of justices state that the equal protection clause prohibits only discrimination on the basis of race because that was how the amendment was understood when it was drafted and ratified–and that whites are decendants of American slaves, in the South and in Michigan–this would require them to uphold the Sixth Circuit Court of Appeals’ ruling in Coalition to Defend Affirmative Action v. Schuette that the Michigan voter initiative that passed in 2006 amending the state constitution to ban affirmative action programs in the state’s public universities itself violates the equal protection clause.

Here again I’ll borrow from the New York Times editorial:

Advocates of affirmative action sued the state on grounds that the amendment violates the United States Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.

For instance, an applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive and arduous process.”

Michigan, in response, argues that the amendment does not violate equal protection because it treats all races the same. But the Sixth Circuit opinion said the denial of equal protection is not in treating races differently in the university admissions process but instead in treating racial-minority interest groups differently from other non-racial-minority minority interest groups, in effectively changing the very nature of the political system itself only for those racial-minority groups.  Every other minority interest group can try to change a law or a government policy through the normal political process of lobbying or trying to defeat or elect certain candidates, including for the state’s universities’ publicly elected boards of regents or trustees. It certainly seems to me that this is pretty much what Section 1 of the Fourteenth Amendment prohibits, in its equal protection clause as well as its (admittedly moribund) privileges and immunities clause.

Last year, the United States Court of Appeals for the Sixth Circuit rejected that claim, striking down the amendment because it especially harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.

The Times editorial also notes the Sixth Circuit’s recitation of an appalling problem with this particular voter initiative–a problem to which I was witness. The editorial says:

This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. That was surely true in Michigan, where the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” according to the federal appeals court. In some cases, voters were tricked into believing that the measure actually supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”

Yes. Make that, Yes! As it happened, in the ten weeks or so leading up to the November 2006 election, I was spending quite a bit of time on the University of Michigan campus in Ann Arbor, and also was reading the student newspaper, the Michigan Daily, almost daily.  And I remember the utter dismay, on campus and in Ann Arbor and elsewhere among many in the surrounding area, at the widespread campaign to mislead about the very nature of the proposed amendment.

So for me, in some sense, tomorrow’s argument at the court will be personal.

The court has delineated the parameters of permissible public-university admissions affirmative action programs under its current equal protection jurisprudence, which, for what in my opinion is not a legitimate reason, privileges the rights of whites over, say, the rights of high school seniors who don’t have a parent who is an alum of the school. As the Times editorial says, and applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But at most universities, including public ones, they don’t have to lobby; alumni connections are considered in admissions. And though those who oppose that policy can lobby, and have lobbied, the university administration or its popularly elected governing board, at the University of Michigan and, probably at the University of Texas, it has been to no avail.  Not because those with alumni connections are a majority of the public, but because they have political and financial clout.

The Michigan state constitutional amendment is undeniably race-based discrimination in access to the normal political process.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.  And the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

We have these statements right from two horses’ mouths.  Or keyboards.

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About That “Poking Into Every Nook and Cranny of Daily Life” Thing, Chief Justice Roberts …

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.

— Linda Greenhouse, The Real John Roberts Emerges, New York Times, today

Yes, the chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”  That is, I guess, as opposed to, say, state laws (and in the case of DOMA, a federal statute) that poke into what should be very private nooks and crannies of daily life, in which case their poking into nooks and crannies of daily life are fine with Roberts.

But more important, but, as I said earlier today and also last week, almost completely ignored by the mainstream media in its coverage of the Supreme Court—and therefore completely unknown to almost everyone—is the current Supreme Court’s bizarre claim that state courts are entitled to unbridled sovereign dignity to poke into every nook and cranny of daily lives.  Or to delegate breathtaking effectively-judicial powers to private persons to control every nook and cranny of the daily lives of, say, those unlucky enough to suddenly be subject to, say, family-law court, or probate court, or criminal courts.  State courts that routinely ignore even their own state’s legislative dictates intended to ensure compliance with procedural and substantive federal constitutional mandates whose unequivocal purpose is to place individual dignity above what these fair-weather “federalism” jurists claim is the constitutional right to sovereign dignity that state courts have and that grants them the constitutional right to violate individual dignity in even the most profound and basic respects.

As I said in a post here last week, maybe one day Justice Kennedy—who, unlike Roberts, does recognize federal constitutional limits to state legislative– and executive-branch powers even concerning matters that aren’t Republican rallying cries—will deign to explain why he and his cohorts believe that the Constitution, which since the late 1860s has included the Fourteenth and Fifteenth amendments and which still includes both the habeas corpus clause and Supremacy clause, renders state courts sovereigns and therefore untouchable by “collateral” declaratory federal-court order.

And maybe that distinguishes Kennedy from Roberts.  Maybe Kennedy one day will give some thought to it.  Roberts by contrast will merrily continue his personal legislative agenda, for which no thought is necessary or evident.

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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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