“Judicial Minimalism is Alive and Well on the Roberts Court”

Artemus Ward and J. Mitchell Pickerill have written this commentary for NLJ.  It begins:

The Supreme Court’s recent decisions on affirmative action, voting rights and gay marriage have sparked a heated debate about discrimination in America and the Court’s role in deciding the most important issues of the day.

In Fisher v. Texas the justices implicitly upheld affirmative action and sent the case back to the lower courts to apply the law more specifically. In Shelby County v. Holder the Court struck down one part of the Voting Rights Act (VRA) and implicitly invited congress to be more specific with the law. In United States v. Windsor the justices struck down the federal Defense of Marriage Act (DOMA) but said that the appellants in Hollingsworth v. Perry did not have the legal authority to bring the case to the Court.

While each of these cases was certainly important to the litigants, and for the development of the law, they may be more important for what they did not do: abolish affirmative action, overturn the VRA, and declare a fundamental right to gay marriage.

I strongly disagree and am writing much more about this.  Stay tuned.


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