The big news at the Supreme Court is that there is none [all the drama aside, this really does not surprise me here] -- they found a way around a potentially major change in voting rights law (though still sending a warning to Congress, without concurrences to temper things) 8-1. With Justice Thomas alone dissenting, in effect arguing that the current race based voting discrimination is not broad enough to warrant the preclearance scheme that requires federal approval when the covered areas wish to change their voting procedures. It once was, but times are much better now. [Update: Not quite.]
There are lots of problems, some racial, but Thomas might have a point -- the country-wide solution however is probably too radical, so the Congress went with a safe law that earned its place in history. The perfect is generally the enemy of the good. Anyways, the majority, via CJ Roberts, avoided the question, allowing the utility district to opt out. A result many voting rights experts deemed an unlikely interpretation of the state, except for just this reason. Judicial minimalism shows its face again with particularly sensitive cases and well accepted laws particularly likely to be treated special.* At times, this works.
[Update: But, overall, as noted in the footnote, the Court sent a warning to Congress and in effect an invite to lower courts to be wary of the preclearance rule. And, dicta or not, this brings with it eight votes. The glove of minimalism barely hiding the fist of activism? See also, the last abortion ruling -- narrow rule, open-ended chance for lower courts to strictly apply abortion challenges, which in practice provides an undue burden.]
[See also here, providing another connection of recently decided cases to Sotomayor. It also suggests the somewhat over the top tone of opinions.]
At the end of the day, if I were to be so presumptuous as to suggest a friendly amendment to Judge Sotomayor’s Berkeley statement quoted above, I would do so along the following lines: "I would expect that a wise Latina woman with the richness of her experiences would quite often reach a different initial conclusion than a white male who hasn't lived that life, and having both perspectives in any discussion is better than having either one in isolation."
Professor Amar uses a general discussion of the upcoming Sotomayor hearings to provide an extended discussion of this speech, for some reason not supplying a link to the actual speech. He uses jury and affirmative action cases to underline that her point as to perspective is correct. But, Amar fails to consider Sotomayor's other argument that there is some evidence that members of a discriminated class are at times more likely to recognize and act upon discrimination. This was the immediate context of the "better" (also might have been some reference to herself, thus the "I hope" in the original fits as a type of humility), including the references to first lead advocates in the race and gender cases.
NYT, continuing its extended and generally interesting coverage, has an article today about Sotomayors mentors, including those who now are her colleagues. Some have noted that Judge Diane Wood had a close but sparring relationship with her conservative brethren on the Seventh Circuit. It is less noted that Judge Sotomayor has some of that on the Second Circuit, which might suggest that she too has some intellectual chops to challenge the likes of Scalia. The article also references the Ricci case, including the dispute between Sotomayor's side and one of her mentors (and a dissent critics of the ruling point to), a mentor the article portrays as more conservative and even more "activist" than she. Interesting context.
Oh, and the dissenting judge is on record as a big supporter of her nomination.
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* This Breyeresque interpretation of statutory text in this particular case was joined by Scalia without comment:
Were the scope of §4(a) considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision.
The law is messy, though at times the Scalia approach (with a sneer) tries to cloud the issue. Scotusblog and others have more extended analysis of this ruling, including the fact it is in effect a warning to Congress that it dodged a bullet, but others will come. A good interpretation of the law recognizes the complexity of things do not only pop up in cases like this.