Category Archives: Supreme Court

David Gans:

Sometime before the end of June, the Supreme Court will decide Shelby County v. Holder, a constitutional challenge to the preclearance provision of the Voting Rights Act, one of the Act’s most important guarantees against racial discrimination in voting.  Shelby County has argued that the Act is unnecessary and outdated and has urged the Supreme Court to hold it unconstitutional on that basis.  With the Court’s decision looming, a number of recent commentators have suggested that, in light of recent voter turnout data, the Voting Rights Act is no longer needed.  They are wrong.

Andrew Kohut in WSJ:

In the next several weeks the Supreme Court is expected to rule on the constitutionality of the requirement that several states, mostly in the South, get “pre-clearance” from the Justice Department before they make any changes to their election laws. The requirement was part of the Voting Rights Act of 1965, which was an emergency measure to outlaw the profound racial discrimination that was disenfranchising African-Americans.

The justices won’t necessarily find a rationale for their decision based on current election polling data. Nevertheless, the experience of voters in recent elections will no doubt be illuminating to the justices, and to all Americans who are concerned with voting rights.

In the past three presidential elections, very few Americans reported having problems or difficulties voting according to Pew Research Center surveys. In its Nov. 8-12 poll in 2012, just 4% of whites answered yes to the question: “Did you have any problems or difficulties voting this year, or not.” Only 2% of African-Americans responded affirmatively.

Justin Levitt has posted this draft on SSRN (Yale Law Journal Online).  Here is the abstract:

In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features—including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure—distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short Essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.

Joey Fishkin has posted this draft on SSRN (Yale L.J. Online).  Here is the abstract:

The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act should be struck down because it offends the “equal dignity” of the covered states — an argument the Court appeared to credit in its last brush with section 5 in NAMUDNO. This Essay, written in advance of the decision in Shelby County, critically examines this equal dignity of the states argument and situates it in a larger context. Americans have been fighting for 150 years, since the Civil War and Reconstruction, about the structural implications of the events of 1861–70 for the sovereignty, dignity, and equality of the states — and of the Southern states in particular. The equal dignity of the states argument thus stakes a claim on the meaning of the Civil War and Reconstruction in American historical memory, a claim whose implications are problematic and profound,

Here.

Richard Wolf reports for USA Today on Shelby County and Fisher.

The following press release arrived via email:

CLC: “This week more jurisdictions moved forward with bailouts from the preclearance provisions of the Voting Rights Act as the Supreme Court weighs a challenge to the constitutionality of those provisions.  Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Wheatland, California from the Act’s preclearance provisions.  On the same day, the Justice Department announced that it had reached agreement on a bailout with the city of Falls Church, Virginia (along with the Falls Church City Public School District) and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia.”

Gary May has written this WaPo oped.  It begins: “In the debate over the future of the Voting Rights Act , it sometimes becomes apparent that certain members of the Supreme Court are either oblivious to our nation’s recent history or willfully ignore it. Justice Antonin Scalia made this abundantly clear in his comments during the Feb. 27 oral argument in Shelby County v. Holder , statements that he repeated in a speech on April 15.”

@TPM reports.  My earlier coverage is here.

Jess Bravin:

Supreme Court Justice Antonin Scalia told university students that key provisions of the Voting Rights Act had evolved from an emergency response to racial discrimination in 1965 to an “embedded” form of “racial preferment” that would likely continue indefinitely unless the court acts to end them.

Justice Scalia, speaking Monday night at the University of California Washington Center, elaborated on remarks he made in February during Supreme Court arguments over the act’s Section 5, which requires states and localities that historically discriminated against minority voters to obtain federal approval to change election procedures.

Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said.

The remarks are not much different from what Justice Scalia said at oral argument in the Shelby County case, but I find it pretty remarkable that he’d make these comments off the bench while Shelby County remains pending.

UPDATE: It gets worse, as Justice Scalia appears to tip his hand on how he’s voting in an upcoming case.

Andrew Cohen blogs.

Ellen Katz has written this important new article for Columbia Law Review’s Sidebar, the first in a series of essays on election law issues in the 2012 election.  From the introduction:

Undeniably, things have changed. Opportunities for minority political participation in places like South Carolina have evolved since Congress first enacted the VRA. Supporters of the VRA readily acknowledge as much but argue that this evolution is less developed, more fragile, and more dependent on section 5’s continued operation than South Carolina and others siding with the petitioners in Shelby County maintain.⁵ The pending case accordingly presents the Court with competing narratives, one of a problem solved and, hence, a statute that has run its course, and another depicting a vulnerable work in progress that requires the sustained attention the VRA provides.

There is, nevertheless, an additional narrative the Justices should consider when they evaluate how far places subject to the VRA’s regional provisions have evolved. This narrative posits that section 5 is far from obsolete and operates not only as a restraint on the ill-intentioned, but also as an affirmative tool of governance. On this account, one of the VRA’s most critical, albeit least appreciated, functions is the way in which it helps public officials navigate complex contemporary questions concerning equality of opportunity in the political process.⁶
A good example of the VRA’s role in this regard is found in the recent dispute over voter identification (ID) in South Carolina. The “evolutionary process”⁷ through which voter ID came to be approved in South Carolina shows section 5 operating not only as a constraint, but also as a constructive mechanism for dispute resolution. In this capacity, section 5 helped produce a voter ID measure which, as one reviewing judge explained, “accomplishes South Carolina’s important objectives, while protecting every individual’s right to vote and . . . addressing the significant concerns” about the measure’s impact on minority voters.⁸

Hope Yen has written this extensive report for AP, which begins:

Has the nation lived down its history of racism and should the law become colorblind?

Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.

In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity. Just this past week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review as well to a Michigan law passed by voters that bars “preferential treatment” to students based on race. Separately in a second case, the court must decide whether race relations — in the South, particularly — have improved to the point that federal laws protecting minority voting rights are no longer warranted.

The questions are apt as the United States closes in on a demographic tipping point, when nonwhites will become a majority of the nation’s population for the first time. That dramatic shift is expected to be reached within the next generation, and how the Supreme Court rules could go a long way in determining what civil rights and equality mean in an America long divided by race.

Let me begin with the caveat that it is always hazardous to predict what the Supreme Court is going to do from reports at oral argument (See, e.g., the health care case). That said, I want to explore what seems most likely to happen at this point with the Supreme Court’s term, and what it would mean.  My best guess today is that Justice Kennedy will be in slim majorities reaching the following results: the Court will not recognize a right to same sex marriage in the California Proposition 8 case, although the means of doing so will likely leave a lower court ruling enjoining California from enforcing Proposition 8 standing; that the Court will strike down section 3 of the Defense of Marriage Act as an unconstitutional affront to traditional state power to define and regulate marriage; that the Court will hold that the coverage formula of section 4 of the Voting Rights Act is an unconstitutional affront to state sovereignty, leaving open the possibility that the Congress could rework a new coverage formula more closely tied to current evidence of intentional racial discrimination in the sates (something Congress will never do); and the Court will not issue a far-reaching decision in the University of Texas affirmative action case, leaving open some issues to be addressed in future cases in future terms, such as the Michigan case the Court just agreed to hear.

If this is the end result of the term, parts will make conservatives mad (such as striking down DOMA, and making the federal government pay same sex benefits to those whose same-sex marriages are recognized by their state) and parts will make liberals mad (such as effectively striking down a crown jewel of the civil rights movement, and failing to go all the way and recognize a constitutional right to same-sex marriage).

Justice Kennedy will probably feel pretty good about a term like this, and in the past he hasn’t minded being alone, in the middle, frustrating his colleagues on the left and the right.  I think of his opinion in the partisan gerrymandering case of Veith v. Jubelirer, where his four conservative colleagues took the position that courts could not hear partisan gerrymandering claims (because they presented political questions with unmanageable judicial standards) and his four liberal colleagues offered a host of standards for reining in partisan gerrymandering, parading them in beauty pageant fashion for Justice Kennedy.  Justice Kennedy took the position that the cases could be heard, but so far no one had come up with any standard to police the constitutionality of such gerrymandering. It was a somewhat inscrutable opinion—keeping the issue open to percolate some more and saying plaintiffs can come to court with these claims which they would continue to lose, until Justice Kennedy found a standard he liked (he still hasn’t).

So Justice Kennedy is fine with 4-1-4 splits on the Court (although some things he might do on standing could bring along additional votes—the Chief, for example, might go along with a decision to find that Prop. 8 initiative proponents have no standing rather than write or join a fiery dissent extolling the virtues of traditional marriage).  The vision will be one of state’s rights, and defended in a kind of lofty language that treats the states as though they were people with feelings.  Justice Kennedy’s nation is one in which Congress and the executive must defer to the power of states in a variety of spheres, intruding only when necessary and the means proportional (Justice Kennedy might say something similar to this in the Arizona voting case, about Congress’s ability to specify that states must accept what the federal government thinks is enough to prove an individual’s citizenship entitling her to vote).

The question will be whether, if we get the summer of Federalism, the other Justices will want to weigh in on the merits of issues that are likely to return to the Court at a later date. A Kennedy opinion holding section 3 of DOMA a violation of states’ rights might be joined by four other Justices in full or in result, with a concurring opinion reaching the merits of the right to gay marriage. Justice Ginsburg and others may want to come out against “skim milk” marriages. The same may happen in the Prop. 8 case.  Even if the Court dismisses on standing grounds, or especially if the four liberal Justices and Kennedy join to dismiss the case as improvidently granted, it could well fall to Justice Scalia, Alito, or Thomas to write that fiery dissent extolling traditional marriage and rejecting a living Constitution and the evolution of norms of constitutional conduct.

In the Voting Rights Act case, Justice Kennedy would be joined by the conservatives in striking down the Act, and I am confident of a fiery dissent from the four liberal members.  The big question will be how far a VRA strike would go: would it open up the door to cases challenging section 2 of the Act, or section 203 (the language provisions), or portions of the Civil Rights Act?  Liberal justices may want to lay down a marker. Some of these questions might depend upon what the Court does in the affirmative action case, but the grant of cert  in the Michigan case suggests these issues are still going to kick around the Court for a while before the end of affirmative action.  If the Court rejects the University of Texas plan on race grounds, it would be the one major case where a constitutional right (here, the white applicant’s right to equal protection) which would trump the state’s right to decide on admission’s policy.

In the end, we’ll all be living in Justice Kennedy’s world. As we already are.

Keli Goff:

I have been baffled by the fact that while the Supreme Court’s upcoming rulings on voting rights and affirmative action were relegated to a couple of days of nonintensive media coverage, coverage of the court’s upcoming rulings on same-sex marriage has been treated as the second coming of the Brown v. Board of Education case, which literally changed America for all Americans, as opposed to the second coming of Loving v. Virginia, which the gay-marriage case more closely resembles, and which ultimately changed the lives of some Americans: those pursuing interracial relationships.