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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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