“‘As singular a failure as I’ve seen in the history of the Supreme Court’? McGinnis on Windsor, not Shelby County”

Kevin Walsh:

Even Totenberg nods.

Nina Totenberg’s end-of-the-term review (HT: How Appealing) includes an extended rip on the Supreme Court’s 5-4 Voting Rights Act decision in Shelby County v. Holder, highlighting criticism by “academic and judicial conservatives.” The quoted critics are Charles Fried, Michael McConnell, and John McGinnis.

One of the most stinging quotations is attributed to McGinnis. Totenberg’s story characterizes McGinnis as arguing that “the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.” She then quotes McGinnis’s comments at a recent judicial conference: “I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.”

The quotation comes from McGinnis’s comments on the Supreme Court review panel at the Fourth Circuit Judicial Conference. McGinnis did utter those words, but he was not talking about Shelby County. Instead, he was talking about Justice Kennedy’s opinion for the Court in United States v. Windsor. That’s a big difference….

Totenberg’s other critical quotations about Shelby County seem correct given their content and context. But while it may be true that “two out of three ain’t bad” in some circumstances, this is not one of them.

The idea that “academic and judicial conservatives” think Shelby County is wrong has already begun to spread. Rick Hasen’s influential Election Law Blog, for example, posts an extended excerpt from the Totenberg story under the post title, “Conservatives Criticize Shelby County Reasoning.”

I’ve reviewed the video and Walsh seems correct.  I’ve updated my original post to link to this one.

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