Why Would the Court’s Liberals Go Along with Justice Scalia’s Time Bombs in Arizona Elections Case?

In Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012), I discuss different methods Justices use to move the law in their preferred direction aside from getting a majority to agree with a direct holding. One of the most important is the “time bomb.”  As I explained:

Justices are sometimes more subtle than they are with invitations[ to litigants to ask the Court to overrule past precedent]. I became familiar with the “time bombs” concept from Seth Stern and Steve Wermiel’s fascinating 2010 biography of Justice Brennan. Discussing Justice O’Connor’s reluctance to join one of Justice Brennan’s opinions, the authors wrote, “O’Connor had taken to heart [Justice] Powell’s warnings that Brennan planted ‘time bombs’ in his opinions. She had learned to watch for those seemingly offhand, throwaway phrases that he exploited in later cases.

Yesterday’s opinion in Arizona v. Inter-Tribal Council is full of time bombs from Justice Scalia. Not only does he explain how Arizona might go to court to get an order compelling the FEC to alter the federal form to conform with the state’s citizenship requirements, he also draws a broad distinction between federal power to set the manner of elections and its lack of power to prescribe voter qualifications.  (This was the main point of my Daily Beast piece yesterday, as well as Marty Lederman’s SCOTUSBlog post and much in line with Lyle Denniston’s analysis.) Justice Scalia’s footnote all but burying a key part of Oregon v. Mitchell on the right of Congress to require states to allow 18 year olds to vote in federal elections is sure to give states new powers to challenge federal voting rules.  He suggests that arguments such as Arizona’s should be recast as challenges to registration rules and that they may have much greater success.

It is true that all of the Scalia language in yesterday’s opinion (on pages 13-17) is full of “might” and “could” language—most of it is dicta. Justice Alito notes those facts in the dissent. But this is scary stuff for those who worry about some states cutting back on voting rights. So the mystery to me is: why would the liberals on the Court go along with all this?  Why not just join Justice Scalia’s opinion in part?  After all, as a former clerk to Justice O’Connor emailed me, it looks like Justice Scalia is trying to provide a roadmap for states to implement voter id laws over federal objection.

Without inside knowledge from the Court, the answer is unclear. Here are a few possibilities, though I would be open to hearing others:

(1) The liberals were thrilled to get an opinion from Justice Scalia with a very muscular reading of Congress’s Elections Clause power.  That battle is won, and other fights over qualifications and state challenges to federal voting rules can wait the next day.  Note in Marty’s revised post comments from Rick Pildes emphasizing the importance of the win in yesterday’s case.

(2) The liberals agree with Justice Scalia on the dicta on pages 13-17, and they think these issues are better left to the states. (That seems unlikely to me, given divides in cases like Crawford).

(3) As Marty suggests in his post, there’s a larger end game here involving Shelby County, and reliance on the Elections Clause in that case to uphold section 5 of the Voting Rights Act.

I’m open to other ideas.

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