Will Baude on DOJ’s Bail-In Announcement

Baude:

One thing I’d add, though: Hasen seems to assume that if Texas is bailed in and the case goes to the Supreme Court, Justice Kennedy will be the marginal vote. But supporters of bail-in might also want to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent, he wrote:

For reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic §5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. … When those [and other] requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under §5 to prevent or remedy racial discrimination by the States.

If DOJ can make a sufficient showing that “there has been an identified history of relevant constitutional violations” in Texas, they ought to get Justice Scalia’s vote.

I wrote a lot about Justice Scalia’s statement in Lane and its relevance to the VRA in this piece. But my sense from NAMUDNO and Shelby County is that the Justice has abandoned those positions.  (Remember the “Racial entitlement” talk?)

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