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Another Term at the Roberts Court

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I have my wrap-up on the end of term at the Supreme Court. In brief, 1)the Court had a larger impact than unusual, 2)this impact was mostly bad, and 3)bad or (less likely) good it generally did a horrible job justifying itself. But read the whole etc.:

Eric Posner of the University of Chicago Law School observed that “[s]imply considered as efforts to persuade, using the conventional tools of legal reasoning, the majority opinions in the three blockbuster cases—Fisher, Shelby County, and Windsor—were real failures.” Justice Kennedy’s majority opinion striking down a key provision of the Defense of Marriage Act, as was noted across the ideological spectrum, was incoherent mush, flirting awkwardly with federalism, due process, and equal protection rationales without ever quite summoning up the courage to invite one to the prom. In the Supreme Court’s latest foray into affirmative action, neither the majority nor concurring opinions even attempted to explain how subjecting affirmative action to strict scrutiny can be squared with conservative constitutional principles.

Still, Shelby County takes the cake here. Ruling on the heart of one of the most important statutes ever passed by the United States Congress places a particularly high burden on the Court to give intelligible (if not necessarily persuasive to all) reasons for its actions. But Roberts’s opinion in this regard was an utter failure, unable to even identify the constitutional provision the Voting Rights Act allegedly violated. Roberts’s opinion first gestured at the Tenth Amendment, but the Voting Rights Act obviously did not violate it. The Tenth Amendment says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States,” but since Section Two of the Fifteenth in fact unambiguously delegates to Congress the power to prevent racial discrimination in voting, the Tenth Amendment is irrelevant to the constitutionality of the Voting Rights Act. Roberts also cited the “equal sovereignty of the states,” which has no basis in the text in the Constitution or, as he used it, in the Supreme Court’s precedents. The few previous cases to discuss the “equal sovereignty of the states” refer merely to new states being on equal footing in terms of admission with the original 13. No previous case has ever suggested that Congress cannot pass valid legislation that affects states differently, not surprisingly since this 1) would be transparently unworkable, and 2) the Constitution protects the equality of persons, not states. Leaving aside the bad policy established by the VRA case, the Chief Justice’s majority opinion simply fails at the basic tasks a Supreme Court opinion must perform to justify striking down an act of Congress.

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