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More on Roberts’s Embarassing Opinion


While we wait for Paul’s piece (PC update: link here) about Roberts’s astoundingly weak justifications for striking down a major act of Congress, I thought I’d add a few additional thoughts myself.

When I first read it, my thoughts were not so much with one of the Court’s previous awful civil rights decisions as with Seminole Tribe, one of the first of the Rehnquist Court’s ridiculous “sovereign immunity” opinions. Rehnquist had to defend a proposition that is pretty much transparently wrong — i.e. that when the very specifically worded 11th Amendment commanded that “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state” it also prohibited suits against one’s one state (even though Congress had considered and rejected this wording.) And yet, he could barely be bothered to mount any defense of his remarkable conclusion, and as Ginsburg did today Souter shredded the opinion and launched the remains to Saturn.

And, yet, I think that just as the Court in Seminole Tribe was “going Lochner one better” Roberts has gone his predecessor one better. To reiterate what I said in my piece, the case for the constitutionality of Section 4 of the Voting Rights Act is both extremely powerful and uncomplicated. Section 2 of the 15th Amendment clearly and unambiguously gives Congress the authority to enforce the constitutional prohibition on racial discrimination in voting “by appropriate legislation.” In this context, “appropriate” In simply requires there to be a rational relationship between the legislation and the objective. In the legal sense of “rational,” Section 4 qualifies easily.

Given the obvious basis for the act’s constitutionality, what part of the Constitution does Section 4 violate? Alas, as Paul implies even after reading Roberts’s opinion one is no closer to the answer. There’s some handwaving to obviously irrelevant provisions of the Constitution (the 10th Amendment merely says that powers not granted to the federal government are retained by the states; since the power to enforce the 15th Amendment was granted to the federal government, it’s irrelevant to this case, and indeed in general is just a “truism” that does no independent work to resolve any particular case.) As Aaron B.puts it in comments, this is an honest-to-goodness fair summary of Roberts’s holding:

Section 4 is not rationally crafted to achieve permissible ends as defined by the 15th amendment. It was, at one point, but since racism is fixed it is no longer necessary and therefore irrational.

Which, leaving aside the obvious problems so memorably characterized by Ginsburg with the assumption that because preclearance has been effective racism is pretty much over, is just wrong for the reasons already discussed. Congress isn’t required to craft the optimal policy or use the very most recent data when exercising its authority. It isn’t prohibited from solving some problems because it can’t solve every problem. Roberts identifies no provision of the Constitution that is violated by Section 4. Implicitly, Roberts seems to be imposing a narrow taioring requirement on Congress — but this would be howlingly inappropriate in an area in which Congress has clear authority and is not potentially breaching any fundamental individual rights. For this reason, Roberts doesn’t say that’s what he’s doing — but he never gets around to saying what he is doing.

In addition, as Eric Posner notes, Roberts also tries to assert a principle of “equal sovereignty” that has the obvious problem of not existing. The principle — which Roberts first tried to claim in his first VRA opinion — has no foundation whatsoever in the text of the Constitution and a doctrinal foundation that would need a lot more stitching to become “threadbare.” One of the cases predates the Civil War Amendments and is hence irrelevant to the post-Civil War relationship between states and the central government. The post-Civil War cases are an 1869 case about the right to secede and a 1960 case which cites the pre-Civil War case simply affirming that based on the Northwest Ordinance new states were to have the same basic character is the original 13. All are obviously wholly irrelevant to the case at hand and none suggests that Congress cannot, in acts of valid ordinary legislation, treat different states differently. Which isn’t surprising because, as Posner explains in detail, this would be clearly unworkable and nobody actually believes it:

What exactly is wrong with the singling out of states by the federal government? Is the idea that when Alabama is on the playground with the other states, they’re going to make fun of it because it had to ask its mama for permission before going out to play? In fact, the federal government doesn’t treat states equally and couldn’t possibly. Nearly all laws affect different states differently. Disaster-relief laws benefit disaster-prone states at the expense of disaster-free states. Pollution-control laws burden industrial states. Progressive taxes burden states where the rich are concentrated. Thanks to Congress, the Environmental Protection Agency can single out states with serious pollution problems, the Justice Department can keep an eye on states with serious corruption problems, and immigration authorities can single out border states for surveillance. Indeed, Section 2 of the Voting Rights Act will continue to burden states with substantial minority populations relative to other states, just because you can’t discriminate against a minority population that doesn’t exist.

Roberts’s opinion is just a disaster; it fails to do the most basic things a decision overruling an act of Congress has to do. And by letting an imaginary “right” of states to be treated equally trump actual fundamental rights that are actually recognized by the Constitution, Roberts is standing the purpose of the Fifteenth Amendment on its head.

For some comic relief, however, I should note that this silly “principle” has found at least one adherent in the legal academy:

It seems to me that the “equal sovereignty” principle is an important structural safeguard in the federal legislative process, protecting us from the democratic dysfunctions of things like the “Cornhusker Kickback.” This is exactly the sort of thing that ought to shake judges out of the usual deference to Congress.

Like Roberts, Althouse gives us no hint of where this “principle” could possibly located in the Constitution or how it could possibly be applied in practice. But, hey, it would give the Supreme Court a general warrant to randomly strike down legislation Ann Althouse doesn’t like — even, apparently, in cases where there’s no intrusion whatsoever on the sovereignty of a state! For a conservative in 2013, that’s apparently good enough. But as a justification for striking down core civil rights protections, it really shouldn’t be.

…and to cleanse the palate, an excellent roundup of VRA links here.

…UPDATE: Posner pere weighs in.

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  • sparks

    Damn, I was just going to mention Althouse in comments.

  • John Casey

    If this were a just world, no right wing hack would ever again accuse a judge with whom he/she disagrees of being a judicial activist. CJ Roberts has retired the lifetime achievement award in that category. This opinion isn’t just ‘activist’; it’s totally lawless.

    • LosGatosCA

      The pattern this ruling fits into is simple – Republicans are fully committed to proving that all branches of government are completely useless, dysfunctional, and without a shred of credibility in governing in any matter whatsoever. If they have to be the ones who are completely useless acting dysfunctional in attempting to discredit the government, then so be it. They truly believe that the village (I.e. the country) must be destroyed to save the village and they are more than willing to pull the trigger.

      Andy Card was once quoted during a visit to college campus as answering what should a soon-to-be-graduate do to prepare to enter government service with the question “Why would you want to do that?” That answer seemed to me to imply that he did not view himself as a public servant but as a saboteur on the inside to keep the government from fulfilling its mission. That seems to be a fundamental principle among conservatives.

      • Davis X. Machina

        The organs of the State, like its courts, exist to serve the Party, and not the other way round, because the Party, and not the state is the Vanguard of the Revolution. Come the inevitable success of the revolution, the State itself is destined to wither away.

        All power to the soviets of preachers and hedge-fund managers!

        The GOP is the only Leninist party of consequence left in the democratic world.

  • MAJeff

    Near the end of last semester, I showed an episode of Eyes on the Prize in my Intro Soc classes. One of the quotes about segregationists stands out in respect to this decision, “You can’t shame a snake.”

    • Scott Lemieux

      I’m thinking of the federal judge responding to the governor of Mississippi: “Any lawyer worth his salt knows that. [Barnett’s] still making a good living from the law, and he knew better than that.”

  • Candy’s Dog

    If I were a liberal billionaire, I would hire a team of lawyers for every state that is currently passing voter restrictions, particularly ID requirements, to parse the new laws within an inch of their teeth. Then I would hire people to canvass the countryside for people needing ID and do whatever it took to get it for them.

    Of course, then the states would pass laws to prohibit assistance to people needing IDs, etc.


    • Another Halocene Human

      If so, civil disobedience time

    • UserGoogol

      I do kind of have to assume the NAACP and the ACLU are going to be getting a big surge in donations soon. That won’t be enough, but it’ll be something.

  • Frank Somatra

    It has been a full working day, so folks have had time to think. What government laws or programs near and dear to the right does this Roberts’ opinion strike down? DOMA? The Department of Education? The Judiciary Act of 1789? I’m sure there has to be something.

    • L2P

      None. None at all.

      There is no “principle” in this opinion that can be used to strike down any law as unconstitutional, or affirm any law as unconstitutional. You can cite this case and say “This law is clearly unconstitutional” or “This law is clearly constitutional.”

      Or both at the same time, actually.

      That’s actually the bigger problem with the decision. Being wrong isn’t a big deal. Courts are wrong all the time. Being unprincipled IS a big deal because the courts lose their ability to act as courts.

      • DocAmazing

        As the physicists say, “It isn’t even wrong”.

  • joeblow1299

    I went to her law school. One imagines it was full of stereotypical bleedinghearts or whatever, being in Madison. In fact, it was full of THUGS — despicable creeps and creepettes from around the small dickwad towns of Wisconsin, from which every Type-A thug in high school glory and perfect ignorance of A World Full of Darkskinned People, crawled their lizardly way to thug heaven at UW-Law. And Althouse was PERFECT — perfectly ignorant of history and economics and perfectly full of privileged whitefolks resentment. In one of her posts about invective in blog comments, she says “YOU MUST HAVE EVIDENCE” to call her vile, but, no, I don’t. I am not getting a grade in her class. SHE IS VILE. SHE IS VILE. SHE IS VILE.

    Althouse: Never met an authoritarian she couldn’t adore.

    • sparks

      Nor a box of wine.

  • Unhinged Liberal

    Personally, I think the court is constantly overreaching its constitutional authority, but many seem to like the concentration of power when it serves their agenda. Well, this time it didn’t and the caterwauling is obnoxiously not considering that it might be used against them.

    I think the lesson you’re learning is “Those who live by the court, die by the court.”


    • cpinva

      “I think the lesson you’re learning is “Those who live by the court, die by the court.”

      no, the lesson we’re learning is, if the constitution specifically provides a basis for legislation the Robert’s faction doesn’t like, just ignore it, and hope no one notices. of course, many people do notice. with any luck, the chief justice will suffer a horrible, but not fatal, accident, rendering him incapable of continuing in his position. we’ll all be saddened, and wish him the best. then, we’ll go on and appoint an actual lawyer to the post.

      • Anonymous

        …with any luck, the chief justice will suffer a horrible, but not fatal, accident…

        This is as ugly as it gets.

        • DrDick

          No, gutting the VRA by a bunch of hyperpartisan, protofascist thugs is as ugly as it gets.

      • witless chum

        Why is it so ugly? When rightwingers monger their wars, they’re saying “I’m willing to incinerate children to get what I want.” (I’m not a pacifist by any stretch, so I’ll willing to say that sometimes, too. Just not as often as John McCain.) Wishing that a pernicious person who’s doing great damage to the country suffer a bad, but not fatal accident doesn’t seem particularly bad compared to running for the White House on a platform of war with Iran.

    • L2P

      We all live and die by the Court. No one voted to make it unconstitutional to pass minimum wage laws.

      As I said upthread, being wrong isn’t a problem. Being unprincipled is. And this decision is unprincipled.

    • Lloyd Bridges

      Looks like I picked the wrong week to give up pancakes.

      • The Wrath of Oliver Kahn


    • sharculese

      Quiet, people who are actually familiar with the Supreme Court are talking.

    • calling all toasters

      Shorter Unhinged Liberal: I’m still pissed about the nigger-loving Warren Court.

  • Unhinged Liberal

    Well that cut and paste didn’t go well…

    • DrDick

      Nothing you ever do or say ever does.

  • Uncle Ebeneezer

    This is exactly the sort of thing that ought to shake judges out of the usual deference to Congress the Constitution.

  • Rarely Posts

    Like the Obamacare decision, this decision makes me question why I became a lawyer (as do some of the cases/arguments that I’ve dealt with in my real life).

    I can deal with “conservative” and “liberal” judges who rely on their underlying ideologies when the regular tools of legal interpretation don’t provide a clear answer. But it’s hard to deal with judges and decisions that don’t care about the regular tools of legal interpretation at all. If we’re going to live in that system, we should get rid of the entire system of judicial review.

  • Rarely Posts

    Also, instead of addressing Althouse, why don’t you turn your cannons on Ilya Shapiro and the Volokh people? In all seriousness, people have actually heard of them, and they are in many ways worse than Althouse without being quite so obviously idiotic.

    I know, I know, it’s not my place to tell anyone what to blog about, but seriously it seems like hitting Althouse is punching down. More importantly, I would love to see you dismantle Shapiro, Volokh, etc. Consider a request from a fan.

    • Another Anonymous

      The VC has been quiet about this one.

      • Timb

        No. It hasn’t. Adler had a post about this

    • The Wrath of Oliver Kahn

      Althouse has been given space on the NYT Editorial Page. She’s not a complete unknown.

  • Royko

    Section 4 is not rationally crafted to achieve permissible ends as defined by the 15th amendment. It was, at one point, but since racism is fixed it is no longer necessary and therefore irrational.

    And Sandy thought it would take 15 more years to fix racism. Good job, everybody!

    • Unhinged Liberal

      In all fairness, the goalposts keep getting moved. At one time, it meant being treated equally regardless of the color of one’s skin.

      Well, Affirmative Action put that notion to rest.

      • witless chum

        Mewling and whining for white privilege is overrated as a pancake topping.

      • The Wrath of Oliver Kahn

        Jeebus Vishnu are you ever stupid.

    • Mark Jamison

      Actually Roberts’ meaning may not be fixed as in the sense of repaired but fixed as in the sense of immovable and permanent and therefore in Roberts’ mind part of the natural order and therefore acceptable.
      I think the sentence is something of a Freudian slip on the part of Roberts and his cohorts.

  • James E. Powell

    Analyzing the decision strikes me as a waste of time. It’s an unabashed exercise of power. Like Bush v Gore, it doesn’t have to make any sense or satisfy any criteria for constitutional law. It only has to have five votes and if you don’t like it, too bad.

    We can be sure that the Republicans in congress will do nothing about it, not now, not in the next few years, not ever. They know that if they don’t suppress minority and poor peoples’ votes, they cannot compete in national elections.

    • Timb

      Sensenbrenner and another Republican in the House have suggested re-working Section Four. I was shocked

  • I gotta say, for some reason, when I got to the “one adherent” part, I just knew who it was going to be about for some reason.

  • Another Anonymous

    Like in the Sebelius case last year, we see Roberts resorting to the “structure” of the Constitution rather than to any particular provision. It’s the neo-Confederate version of penumbras and emanations. Maybe we should start mocking Roberts as a “structuralist.”

    But this is even worse than Sebelius, because the structure of the document changed with the Reconstruction Amendments. Roberts, and Kennedy, and the rest of them, want the clock turned back to 1860.

    Ginsburg called out Roberts on not even specifying the standard of review, another sure sign of a renegade appeals court.

  • Dave D.

    BREAKING: Roberts Court strikes down DOMA. The Chief writes for the Court: “DOMA served a purpose when it was written and passed, but the convenient, mobilizing homophobia that powered it is no longer relevant today. We need not look to the record of Congressional hearings to know that Congress has failed to update the rationale behind the law (by, say, making it subtler and more insidious). Also, DOMA clearly infringes upon the equal dignity of the states by privileging the marriage arrangements of some above the marriage arrangements of others. This is, as I said yesterday, constitutionally impermissible.”

  • rea

    It’s really rather senseless to attempt to engage the opnion on the merits, but one thing that bothers me is this: the statute has a proceure, under which a jurisdiction can get off the preclearance list if it shows (essentially) that it hasn’t engaged in purposeful voting discrimination for the last 10 years. Why is that available procedure not adequate to deal with any claim that the list of preclearance jurisdictions is obsolete? Maybe I’m missing something, but I don’t think Roberts says a word about this.

    • David Hunt

      Why is that available procedure not adequate to deal with any claim that the list of preclearance jurisdictions is obsolete?

      The answer is that it can’t be adequate for Roberts to argue that the outdated data used as the basis of the formula makes it unconstitutional.

      Hmmm. My above statement is wrong as it seems that nothing would have stopped Roberts from that argument. FSM, what an ass!

  • daveNYC

    So Althouse would say that the entire federal budget is unconstitutional since each state gets a different amount of federal dollars, and the amount they do get back isn’t what they paid in.

    Hell, is there any way in which “equal sovereignty” doesn’t eventually lead to an Articles of Confederation type mess?

    • Scott Lemieux

      Hell, is there any way in which “equal sovereignty” doesn’t eventually lead to an Articles of Confederation type mess?

      That’s a feature, not a bug!

    • burritoboy

      Yes, it’s precisely that. In fact, there’s no way that the US Supreme Court can itself exist – if the states don’t give up sovereignty, then they have not given up sovereignty to a US Supreme Court either, which Supreme Court is just as much a creation of the states giving up sovereignty as the creation of the two national legislative houses.

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  • jake the snake

    There used to be a saying in automobile racing about rules regulating new technology, “If you can’t outrun ’em, outlaw ’em”.
    The Republican philosophy on voter rights should just be called, “if you can’t outvote ’em, outlaw ’em”.
    Or, shorter John Roberts, “Section 2 of the 15th amendment is unconstitutional.”

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    The genius of this newly consecrated doctrine of equal sovereignty is in it’s ability to self-correct…

    Roberts clearly intends to abolish the House of Representatives, leaving only the upper chamber to legislate away our nations woes.

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