Justice Ginsburg’s Vigor, as Evidenced by Her Shelby County Dissent

[This is one of a series of posts on issues related to the Shelby County voting rights case flagged, but not fully developed, in my draft paper, Shelby County and the Illusion of Minimalism.]

One of the last major opinions Justice Stevens wrote for the Supreme Court, his dissent in the Citizens United campaign finance case, was a disappointment. Rather than being a strong and crisp statement of principles to support reasonable campaign finance regulation under anti-corruption, egalitarian principles, or both, the opinion was meandering and unfocused (so much so that I dedicated a law review article to its weaknesses). I had always been a fan of Justice Stevens and found this disappointing. Justice Stevens too expressed concern about his oral dissent in Citizens United in explaining why he decided it was time to retire.

I bring up the Stevens issue because there has been talk too that Justice Ginsburg should retire soon given her age and the chance that the next President might be Republican, giving Republicans the chance to put a young new conservative on the Court. In an interview last week with Joan Biskupic, Justice Ginsburg rejected retirement talk, putting the kibosh on conventional wisdom that she would retire at the end of the Court’s next term.

The question whether the 80-year-old Ginsburg should retire is a difficult one, and  I will likely leave this debate for others. The issue is difficult because, unlike Stevens, Ginsburg is still at the top of her game. If Justice Ginsburg started missing a step, the case for her quick retirement would be an easy one.

Her dissent in the landmark voting rights ruling last month, Shelby County v. Holder, is crisp and directed, pointed and clear. With a couple of exceptions (most importantly its attempt to paint a happy picture of Congress’s 2006 renewal), it is an exemplary dissent.

Most impressive about the dissent is that Justice Ginsburg offers a nascent new theory of federal power to regulate state elections in the name of promoting democracy.This is hardly the stuff of a Justice going through the motions. The opinion puts forward the theory and at the same time explains what I’ve considered to be a curious decision of Justice Ginsburg and the other liberals to join in full Justice Scalia’s opinion in the Arizona Inter-Tribal case.  Part of that opinion seems to give states new ammunition to fight against federal oversight of elections.  So why did Ginsburg sign it?  Here’s the relevant discussion from my draft paper:

The dissent offers a muscular and integrated vision of the five constitutional amendments mentioning the right to vote and, coupled with its view of the Elections Clause in Article 4, the Constitution gives Congress broad power to protect the franchise and democratic processes against state encroachment.[1]

[1] Id at *24 n 2 (“The Constitution uses the words ‘right to vote’ in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty–Fourth, and Twenty–Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U.S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U.S. Const., Art. I, § 4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc., –––U.S., ––––, –––– – ––––, 133 S.Ct. 2247, –––– – ––––, ––– L.Ed.2d –––– (2013)).

This footnote may help explain why the Shelby County dissenters were willing to sign on to Justice Scalia’s majority opinion in Arizona v. Inter Tribal Council despite language in the opinion which could be used later by states to fight federal election legislation by claiming such legislation impedes state power to set voter qualifications. See Richard L. Hasen, The Supreme Court Gives States New Weapons in the Voting Wars, The Daily Beast, Jun. 17, 2013, http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html. In a future case involving a state’s qualifications power being raised against a federal election rule, the dissenters likely would seek to distance themselves from the voter qualifications dicta in Inter Tribal Council just as they distanced themselves from the NAMUDNO dicta in Shelby County. Instead, the dissenters offer a nascent theory of broad congressional power to assure equality in voting.

So say what you will about whether Justice Ginsburg should retire given her age, giving President Obama a sure chance to appoint a young new liberal Justice to the Court. But don’t think for a moment that Justice Ginsburg isn’t up to the task of continuing at full (and impressive for any age) strength for the near term.

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