“In Need Of A Constitutional Rationale”: Supreme Court Judicial Activism At Its Worst, Because They Felt Like It
There’s something about the Supreme Court’s ruling in Shelby that’s bothered me all day. It’s probably unimportant — Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.
Assuming I’d missed something important, I asked the Constitutional Accountability Center’s David Gans to help me out. He told me:
“Your question highlights a fundamental flaw in Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
“His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.”
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people’s representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It’s been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.
Or put another way, when federal law is endorsed by the House, the Senate, the president, and the public, and it’s consistent with decades of Supreme Court precedent, a court majority probably ought to have a very good reason for tossing all of that aside.
But in Shelby, five conservative justices gutted the Voting Rights Act anyway, deeming it inconsistent with the Constitution because, well, they said so. These jurists said the same law used to be perfectly constitutional, but somehow morphed into being unconstitutional without anyone noticing, and without violating anything specific in the Constitution itself.
I’d argue this is the opposite of restraint; it’s activism. The justices decided to substitute their judgment for the people’s and their elected lawmakers, because they felt like it.
By: Steve Benen, The Maddow Blog, June 25, 2013
“Protection Of Minority Voting Rights Is A Thing Of The Past”: SCOTUS Voting Rights Decision Hurls Nation Back To Its Tragic Past
In a 5-4 decision along the ideological lines one might expect, the Supreme Court today cut out the heart and soul of the Voting Rights Act of 1965.
While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender—the Court struck down the sole method of enforcing the intent of the law. They accomplished this by declaring Section 4 of the Act, which sets forth the formula for determining which state and local governments must seek federal approval of any and all changes to their voting laws before placing the same into effect, to be unconstitutional.
Writing for the majority, Chief Justice Roberts stated,
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
In other words, it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.
The logic of the majority represents a tragic irony given that the ruling comes at a time when minority voting rights are, once again, under severe attack as state governments under GOP control seek to rig the game in an effort to overcome the demographic and racial shifts in the electorate. These changes dramatically improve the opportunities for Democrats to gain elected office—particularly when it comes to the presidency.
Indeed, it was the Voting Rights Act that was at the heart of successful efforts to stop states attempting to cut back on early voting hours and instituting voter identification laws that would have dramatically affected minority voter turnout during the 2012 election. Now, the opportunity to rely on the law to stop future efforts to curtail minority voting will have vanished in a 5-4 decision.
Not all that many years ago, I might have seen the logic in the majority’s opinion.
A review of registration and voting data in the state and local governments that have been—up until today—required to gain federal approval of their voting and registration laws before placing them into effect, revealed that major steps forward had taken place as a result of the 1965 law. Still, Congress saw fit to continue the formula set forth in Section 4 of the VRA when they renewed the law in 2006 without making changes to which states and local governments are affected—a Congressional decision that rests at the very heart of the Supreme Court majority’s displeasure.
The Court had previously warned Congress of what might come if they failed to make adjustments to the law based on recognizing the advancements made in states still subject to federal oversight. In 2009, the Supreme Court considered the constitutionality of the 2006 extension of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. In that case, the Court avoiding ruling on the central issue—the constitutionality of all or part of the VRA. However, the majority went out of their way to highlight their concern that Congress was relying on old data collected in 1974 when calculating which state and local governments would continue to be subject to federal approval of local voter laws.
Congress never got around to reviewing the law, based on the Supreme Court’s admonition, leading to today’s regressive decision.
At the time of the Municipal Utility decision, I saw some value in the Court’s approach. While it remained—and remains—essential that the VRA continue in full force and effect to protect the voting rights of all Americans, it made sense that data constantly be reviewed by Congress so as to grant more sovereign authority to states and local governments who may now adequately protect voting rights. But it remains equally as important that the federal government hold onto the opportunity to clamp down on these governmental units should they return to old habits.
But then came the efforts over the past few election cycles to suppress the vote of minorities in various states throughout the nation. In each instance, the drive to limit access to the polls came in states where the government was fully under the control of Republicans looking to improve the chances of electoral victory in the 2012 presidential election.
We all recall what happened in states like Florida, Pennsylvania and Ohio where difficult and unreasonable voter ID laws, or dramatically shortened early voting hours and other voting opportunities were suddenly legislated into existence.
The State of Texas—a state subject to the requirements of Section 4 of the Voting Rights Act—has now produced the most restrictive voter ID law in the country but has been unable to implement the law as the Feds have yet to approve it. The same is the case in Virginia where an onerous voter ID law has been signed by the Governor but held up pending federal approval as they too are subject to the enforcement provisions of the VRA.
Federal protections of minorities in these states are now a thing of the past. Indeed, the state of Texas has already announced that, based on today’s Supreme Court ruling, they no longer have to wait for federal approval of their voter ID law and that the law will go into effect immediately.
Seeing this happen makes it all too clear that many of these states have not changed their ways since the day President Lyndon Johnson signed the Voting Rights Act into law and that the only thing that has protected minorities in these states during the years following 1965 has been the very part of the Voting Rights Act that has now been invalidated.
The Supreme Court got it wrong. By not recognizing that the success of the Voting Rights Act enforcement provisions was based on the existence of the enforcement provisions, the Court has condemned the nation to relive some of the worst days and inequities in our history.
While today’s decision does leave the door open for Congress to take on the issue and re-craft Section 4 with an eye to current data, does anyone actually believe that this will happen with the GOP in control of the House of Representatives?
Not likely—or at least not likely until we have a federal government fully back in the hands of the Democratic Party.
For anyone out there who believes that midterm elections are not particularly exciting or worth your time, the stakes of the 2014 midterms just increased dramatically. The nation took a giant step backwards today—a misstep that can only be corrected by the return of the House of Representatives to Democratic control and retaining the Democratic majority in the Senate. As a result, while today’s Supreme Court decision makes this a very sad day in the advancement of the nation, it may be just the kick in the pants Americans require to get out of the house and down to the voting booth in November, 2014.
Let’s hope so.
A lot of Americans suffered a great deal—some making the ultimate sacrifice—to make the Voting Rights Act of 1965 a reality.
We should not let them down now.
By: Rick Ungar, Op-Ed Contributor, Forbes, June 25, 2013
“The Status Quo Is Unacceptable”: It’s Time To End The Imposed Ignorance Of Guns And The Harm They Do
A revealing thing happened in the grief-filled days that followed the massacre of helpless children and their teachers at Sandy Hook Elementary School in Newtown, CT.
Virtually every conversation about gun control, about any possible remedy for gun violence, hit a roadblock. We just didn’t know a lot about the guns circulating in America.
How many guns are in the U.S.? We don’t have reliable figures.
Is there a connection between gun violence and the depictions of violence in video games and movies? Studies on that issue are few and inconclusive.
Just how do guns wind up in the hands of the mentally ill or the criminally minded? To answer that, we’d have to do a better job of tracking guns used in crimes.
This national ignorance is the cover under which the gun lobby hides. Its denialism and simplistic wishful thinking — the solution to mass shootings is more “good guys with a gun” — thrives and holds sway because we have failed to study the problem and base our policy decisions on a sound basis: evidence.
Things may be about to change. A new report pushes us one step closer to treating gun violence as a public health issue. If allowed to gain traction, this change in attitude will have huge consequences.
The report was issued by a panel of experts called together under executive order by President Obama after Newtown killings. The Institute of Medicine and National Research Council assembled the panel and has set priorities to focus research.
Obama is asking for $10 million in the 2014 budget to fund research. Time will tell if Congress has the backbone to follow through. It has folded before.
Money for such research was halted in the mid-1990s under pressure by the National Rifle Association. Ever since, we’ve been stumbling along as a nation, racking up more than a quarter-million deaths by gunfire in the last decade alone.
Because we haven’t gathered a great deal of data on how guns are used in America — for self-defense, in crime, in suicides — we have permitted all sorts of magical thinking.
Hence, some have argued that the solution to mass shootings is to get rid of “gun-free zones,” which (they reason) create easy targets for killers to seek. Then there’s the argument that simply giving children more education about gun safety will lessen their chances of playing with a weapon. What does the evidence say? Well, studies conflict. More and better research would help assess policy proposals.
The president’s panel has selected five areas for focus: the characteristics of gun violence, risk and protective factors, prevention and other interventions, gun safety technology, and the influence of video games and other media.
The aim is not to take guns away from people. It’s about making gun ownership and use safer. It’s about respecting the lethal nature of the weapons enough to reduce accidents, suicides and gun use by the untrained and criminals.
The report took pains to address the fear of creating any sort of national database for gun ownership, a favorite bugbear of gun-control critics. It notes that “anonymized data should be used to protect civil liberties.”
In fact, more and better information could decrease the gulf between those who see gun ownership as an absolute and integral American right and those who regard guns as a serious public health problem. The two points of view need not be mutually exclusive.
Think about the great benefits to American society that have come from efforts to change attitudes about road safety, as well as improvements to roadway design. Countless lives have been saved by a process that began after the federal government began thoroughly studying car wrecks.
By understanding better how people were being injured, both government and industry could make sensible changes. Some key changes were instituted by law, such as speed limits and seat belt usage. Some were safety design changes initiated by manufacturers. After all, protecting the car’s “precious cargo” is a great selling proposition.
Wouldn’t the same argument appeal to a responsible gun owner? This model is less likely to be used by a child or stolen and used by a criminal due to biometrics.
We didn’t confiscate people’s cars. We simply mitigated the injury and loss of life they caused.
As the debate about funding research into firearms goes forward, note which organizations and politicians fight mightily against it. It will speak volumes.
The status quo is unacceptable. And those who fight research and understanding will be telling us that they are satisfied with the way things stand.
By: Mary Sanchez, The National Memo, June 24, 2013
“Taking A Trip To Boehnerland”: John Boehner Takes His Relationship With DC’s Lobbying Industry Quite Seriously
When we think about the sphere of influence for the Speaker of the House, we would ordinarily think first of the House majority caucus. After all, that would make sense — John Boehner should have power on the Hill, where he leads over 200 federal lawmakers who chose to put a gavel in his hands and put behind only the Vice President in the presidential line of succession.
But in practice, Boehner’s sphere of influence is fairly limited in the chamber he ostensibly leads. His operation is far more impressive about a mile and a half away from the Capitol, in the city’s lobbying corridor.
A top aide to Speaker John Boehner (R-Ohio) is leaving his post to run the Washington office of American Express, becoming the third-high ranking staffer to depart the office in recent months.
Brett Loper, one of Boehner’s key conduits to the White House during the doomed “fiscal cliff” negotiations of 2012, is returning to K Street after a brief stint in the Speaker’s office where he most recently served as deputy chief of staff.
The Speaker’s chief of staff, Barry Jackson, left in Feburary to work at two separate firms — Brownstein Hyatt Farber Schreck, a lobby shop, and Lindsey Group, an economic advisory firm. Earlier in February, Boehner’s health adviser, Emily Porter, left to become a vice president at the lobbying firm Nickles Group.
As these departures mount, it’s only natural to wonder if the Speaker’s career is in in decline, and there are rumors that Boehner, frustrated by his complete inability to govern, may retire in the near future. The resignations will only further fuel the speculation.
But there is another explanation — there’s long been a revolving door in Boehner’s office, with aides (a) leaving his staff to become lobbyists; (b) leaving lobbying to join his staff; or (c) occasionally making more than one trip in each direction.
Indeed, in a statement thanking Loper for his service, the Speaker said the staffer will be missed throughout Boehnerland, our Conference, and the entire House.”
This may sound like an odd choice of words, but for a significant group of people, “Boehnerland” is an actual thing.
Long-time readers may recall that this has been an ongoing area of interest for me, dating back to 2010 when I first learned what “Boehnerland” is.
He maintains especially tight ties with a circle of lobbyists and former aides representing some of the nation’s biggest businesses, including Goldman Sachs, Google, Citigroup, R. J. Reynolds, MillerCoors and UPS.
They have contributed hundreds of thousands of dollars to his campaigns, provided him with rides on their corporate jets, socialized with him at luxury golf resorts and waterfront bashes and are now leading fund-raising efforts for his Boehner for Speaker campaign, which is soliciting checks of up to $37,800 each, the maximum allowed.
Some of the lobbyists readily acknowledge routinely seeking his office’s help — calling the congressman and his aides as often as several times a week — to advance their agenda in Washington. And in many cases, Mr. Boehner has helped them out.
Of course he has; many of these lobbyists worked in his office.
While many lawmakers in each party have networks of donors, lobbyists and former aides who now represent corporate interests, Mr. Boehner’s ties seem especially deep. His clique of friends and current and former staff members even has a nickname on Capitol Hill, Boehner Land. The members of this inner circle said their association with Mr. Boehner translates into open access to him and his staff.
It’s probably worth emphasizing that all of this is legal and permissible under congressional ethics rules. The point isn’t that Boehner is guilty of anything untoward; rather, the point is Boehner takes his relationship with DC’s lobbying industry quite seriously.
And as we talked about last fall, this relationship manifests itself in ways that reinforce its value. When Congress worked on a jobs bill in 2010, Boehner and his team huddled with corporate lobbyists. When work on Wall Street reform got underway, Boehner and the GOP huddled with industry lobbyists. When Congress worked on health care reform, Boehner and the GOP huddled with insurance lobbyists. When an energy/climate bill started advancing, the GOP huddled with energy lobbyists. In 2012, when the STOCK Act was being considered, the GOP huddled with financial industry lobbyists.
This is just Boehner’s m.o. And as more staffers depart the Speaker’s office for more lobbying gigs, the population of Boehnerland just keeps growing.
By: Steve Benen, The Maddow Blog, June 24, 2013
“I Want My Binky”: Justice Samuel Alito’s Middle-School Antics
The most remarkable thing about the Supreme Court’s opinions announced Monday was not what the justices wrote or said. It was what Samuel Alito did.
The associate justice, a George W. Bush appointee, read two opinions, both 5-4 decisions that split the court along its usual right-left divide. But Alito didn’t stop there. When Justice Ruth Bader Ginsburg read her dissent from the bench, Alito visibly mocked his colleague.
Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.
His treatment of the 80-year-old Ginsburg, 17 years his elder and with 13 years more seniority, was a curious display of judicial temperament or, more accurately, judicial intemperance. Typically, justices state their differences in words — and Alito, as it happens, had just spoken several hundred of his own from the bench. But he frequently supplements words with middle-school gestures.
Days earlier, I watched as he demonstrated his disdain for Elena Kagan and Sonia Sotomayor, the two other women on the court. Kagan, the newest justice, prefaced her reading of an opinion in a low-profile case by joking that it was “possibly not” the case the audience had come to hear. The audience responded with laughter, a few justices smiled — and Alito, seated at Kagan’s right elbow, glowered.
Another time, Sotomayor, reading a little-watched case about water rights, joked that “every student in the audience is going to look up the word ‘preemption’ today.” Alito rolled his eyes and shook his head.
Alito is best known for his antics at the 2010 State of the Union address, when President Obama criticized the Citizens United decision. While other justices remained expressionless, Alito adopted a sour look, shook his head “no” and appeared to mouth the words “not true.” At the various oral arguments I’ve watched over the past few years, Alito’s eye-rolling, head-shaking and other expressions of exasperation are a fairly common occurrence, most often when Sotomayor has the floor.
Alito’s latest irritability came, ironically, on a day when the main headline about the court was comity: Justice Anthony Kennedy read an unexpectedly modest decision on affirmative action that left some racial preferences intact and commanded a 7-1 majority. Many in the audience expected bigger decisions, on same-sex marriage and voting rights (former justices John Paul Stevens and Alito’s predecessor, Sandra Day O’Connor, were both in the house), but those contentious issues were held for another day.
Beyond the broad agreement on affirmative action, though, were three 5-4 decisions Monday, two read by Alito with a dry and clinical delivery. In the first, he announced that the court was rejecting a jury award for a woman who was disfigured and disabled by a drug that didn’t come with adequate warnings. Despite the “dreadful injuries,” Alito argued, siding with the drugmaker and throwing out an appellate-court ruling, “sympathy for respondent does not relieve us of the responsibility of following the law.”
The second case Alito read, one of two cases Monday limiting claims of workplace discrimination, rejected an African American woman’s complaints of a racially hostile work environment. Alito argued that the employer was not liable because, under Alito’s narrowed definition, the person doing the harassing did not qualify as the employee’s supervisor.
Other conservative justices share Alito’s views but aren’t quite so dour in expression. Antonin Scalia is caustic and even incendiary, but often funny. Chief Justice John Roberts can be droll. On the other side, Kagan has tried to make the court more accessible to a lay audience by giving chatty lectures from the bench rather than reading from her written opinions, which also have been playful. In an opinion she wrote this month on a transportation case, she made reference to the 1980s song “867-5309/Jenny” by Tommy Tutone.
Even Ginsburg, no comedienne, can be colloquial and accessible. In her dissents Monday, she noted that an employee can avoid a harassing co-worker by telling him to “buzz off.” She also invoked the self-deprecating quotation defining a legal mind as one that “can think about a thing inextricably attached to something else without thinking about the thing which it is attached to.”
Ginsburg was tart, even acidic — but she confined her objections to words. That kind of judicial restraint would benefit her junior colleague.
By: Dana Milbank, Opinion Writer, The Washington Post, June 24, 2013
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
