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Decision Day 2: Voting, Indian Children and Property
Rick Hasen of Election Blog (who is looking a bit wrong on the IRS "scandal" as more details come out) warned Congress that current doctrine would make the equation used to apply the preclearance provision to certain areas but not others suspect.
[ETA: As I heard suggested by one commentator, a thoughtful approach would leave open an equitable solution that struck down the provision but left the old rule in place for a limited time so that a solution can be found. I think this is an equitable power the Court has ala "all deliberate speed" in the school segregation cases. This seems fairer.]
For partially political reasons, the map in question was not brought up to date. On some level, this is troubling, but this does not mean the 5-4 ruling striking it down was the right move. Congress has the power and responsibility by "appropriate legislation" to enforce the 14A and 15A. The word "appropriate" has some limits, but what they are are hazy, and it really should be seen as overall a basic political question.
At least, a co-equal branch should not be struck down 5-4, even without the supermajority that was behind this law. Political concerns, the problems with starting from scratch as compared to working off what you have and the legitimacy of continuing to work with the areas with past problems all counsel against that. [See, e.g., here.]
The ideology of the opinion's author was well known, though his "facts" at time might be off. This open one up to cynicism, but it's expected -- new nominees change things and Ginsburg (who again provides a good dissent to Roberts' majority opinion on a major piece of congressional legislation*) et. al. had a past too. Anyway, Chris Hayes (Twitter) et. al. already have been saying that it is unlikely that this Congress will agree on a new up to date map, particularly since instead of sticking with what they had, it could such and such a representative admitting in 2013 that his or her area warrants extra attention because of discriminatory behavior. Who wants that?
We shall see what happens.
For me, an ideal world would involve an up to date map. But, we don't live there. We live in realistic world. In fact, even if this was a few years ago, this decision might not been as problematic. It is harder to imagine this passing though who is to know that even then what would happen if new coverage areas would have to be worked out. The best of all worlds would be to cover the whole country. The 15A didn't and doesn't just cover the South. The North had discriminatory laws and still have some practices with discriminatory effects. If an id law will be a problem, it might be a problem in Indiana as much as South Carolina. Section 2 is still there, so suits can be done after the fact.
As noted in a footnote, the ruling "immobilized" a major part of the Voting Rights Act. But, the VRA is not dead. As AG Holder noted today:
Finally, we need to be clear about what happened today. Part of the
Voting Rights Act, but not all of it, was struck down. The
constitutionally protected voting rights of all Americans remain fully
intact. And the right to vote, free from discrimination based on race
or language, requires our vigilant protection. We know from many
decades of long, hard struggle that the best way to defend a right is to
go out and exercise it. So no one should conclude that today’s
unfortunate decision has rendered her or his voting rights invalid, or
has made attempting to cast a ballot on Election Day futile.
There were other rulings. Scalia split from Thomas (who did another one man originalist lesson) in an Indian Adoption case, Scalia dissenting (main dissent Sotomayor; Scalia disagreed with a small point, while adding a comment on parental rights) while Breyer concurred to split the liberal bloc again. Alito again had two opinions -- this one along with an important Takings ruling that was something of a surprise 5-4 loss for the government. Kagan had it out again with Alito;** well, actually, she agrees with the majority on a key point. The property owner in effect has nine justices on his side at least in part, but wins 5-4 at the end of the day. That's probably notable, especially if you know more about this area of law than I. The potential for local land use to be affected seems serious. Still, especially with Kagan in part focusing on facts, how much is unclear.
[Update: The property case has raised various "federalism" responses. Perhaps, land policy is not quite the same thing as race or religion or crime control in some fashion? Different views there, clearly. More on the adoption case, including a reference to the fraction Native American that sometimes popped up. Tribal membership is not merely some fraction of blood. Also, I would add that F16 of the dissent also brought to mind something I did -- what about the Treaty Clause? Thomas' separate opinions are sort of comparable to William Douglas: interesting in a fashion, especially if you take them with a grain of salt.]
There is one more case few care about and the marriage cases. They are in effect the season finale and it rubs me kind of the wrong way that the Supreme Court is doing things that in effect make them the finale. Scalia et. al. are annoyed that some single out certain things or stereotype, not looking at the big picture. But, they are putting a lot of emphasis on two cases that underlines that some things are more important than others. In a big way. Now, this is certainly true on some level. The VRA case or the PPACA cases or these are rather important. And, the time it takes to write, plus them being heard fairly late in the term makes the placement here appropriate enough. Just saying. Let's hope, as has occurred recently, there aren't any cliffhangers.
The grants are a type of "in upcoming episodes" deal.
* One difficulty with the PPACA ruling was (as Federalist Society hero Judge Sutton noted earlier) the presence of a myriad of appropriate applications of people clearly "active" in commerce, thus a facial attack should have failed. Ginsburg notes here that the specific litigant at least is a somewhat lousy choice given the area's voting rights history. An early footnote provides but one of many good money quotes: "The Court purports to declare unconstitutional only the coverage formula set out in §4(b). [cite] But without that formula, §5 is immobilized."
There is a certain breed of judicial activism here, including not accepting Congress' fact-finding and judgment that it was not working from scratch, but from a continuing history and remedial framework, which has to be seen as a whole to fully understand the legitimacy of its approach. Upholding the law would be on that level a fully conservative thing to do.
** Sotomayor opened her Indian Adoption dissent (also against an Alito majority) this way:
A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result.
It was a messy case from the sad facts on down. Thomas concurred to note how constitutional avoidance influenced his reading of text that could go either way. Breyer concurred to temper the breadth of his join too. But, guess that is what the USSC is there for.