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John Roberts, Shelby County, and stare circulus jerkus

[ 89 ] February 24, 2014 |

I understand that Amel Ahmed is ultimately on the right side of the voting rights issue, but there is no context in which the phrase “John Roberts was right” should appear in a discussion of Shelby County, unless the question is whether his clerks spelled his name right.

To make one additional point about the risible “equal sovereignty of the states” doctrine Roberts resurrected from the antebellum slave power, it’s a classic example of conservative hacks citing their own bare assertions in dicta as if they settled legal disputes. In Shelby County, Roberts gets very pissy about the dissent’s refusal to take his exhumation of an (uncited) Roger Taney with sufficient seriousness: “the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance.” Ah, I get it — there wasn’t really a defense of the “equal sovereignty” doctrine in Shelby County because he already defended in a Northwest Austin dictum. So here’s his defense of the “equal sovereignty of the states” theory from Northwest Austin, in its entirety:

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

So let’s see. We have a bare assertion that the doctrine Roberts just made up reflects a “historic tradition.” We have two land rights cases that deal with state boundaries prior to their admission to the union (one from prior to the civil war), and an 1969 case dealing with the legality of secession (Roberts’s “see also” is a nice giveaway that the precedent is wholly irrelevant.) And finally, we have South Carolina v. Katzenbach, which has the advantage of being relevant to this case but the disadvantage of pointing out that the “doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Note what Roberts leaves out of the relevant quote to make it less damning; if nothing else, this opinion demonstrates a consummate mastery of bullshit.) None of the other cited precedents contradicts Katzenbach‘s holding. In other words, Roberts has nothing – no constitutional text, no relevant precedent, no constitutional tradition, not even an actual argument. Shelby County relies on citing this nothing as the controlling precedent. As I quote Richard Posner as saying in the linked piece, the decision “rests on air.”

There’s an additional scam being pulled here. Roberts tries to get some authority for his worthless Northwest Austin arguments by noting that the opinion “joined by two of today’s dissenters,” suggesting that it reflects a consensus about basic principles. But this is the legal equivalent of pretending to believe that the position-taking of public officials must represent nothing but sincere, unfettered policy preferences. (Some liberals have the same problem with Sebelius, believing that Stephen Breyer voting for the most liberal spending power position that could command five votes means that the Supreme Court justice with perhaps the most expansive vision of federal power in history is suddenly going to start voting with reactionaries to randomly rule exercises of the spending power unconstitutional. It’s theoretically possible, just as it’s theoretically possible that Roberts is going to start frequently acting as the swing vote with the four liberal justices, but it’s really not how to bet.) But we all know this is silly. Ginsburg and Breyer joined the Northwest Austin majority because the only alternative that could command a majority was…Shelby County. In retrospect, as RBG acknowledges, this was probably a mistake, but it’s remarkably disingenuous to suggest that every member of the Northwest Austin majority subscribed to every dictum in the opinion. In fairness, though, it’s not as if Roberts had a better to argument to make, and if my opinion had been shredded as mercilessly as Ginburg’s dissent did to Shelby County, I wouldn’t be in a great mood either.

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  1. Anderson says:

    I agree with Ahmed that “[f]ederal oversight should not just apply to a handful of states with a history of discrimination; it should apply to all states.”

    But I take it you agree that Congress under the 15th Amendment (as written, not as edited by Roberts) does have the right and the power to reserve its remedies to that handful of states.

    • Scott Lemieux says:

      Of course. As long as it’s not irrational any Congressional action against vote discrimination is plainly constitutional.

    • Dilan Esper says:

      I think there’s SOME congruence requirement. In other words, a Voting Rights Act that intentionally directed its preclearance requirement at states which had a history of RESPECTING the rights of minorities to vote would be unconstitutional. And a preclearance requirement that bore little relationship to historic discrimination patterns might be.

      A national statute meets the congruence requirement. And the VRA, which was based on historic discrimination patterns and contained a bail-out provision which allowed localities and states to prove they were no longer discriminatory, was also sufficiently congruent.

      • Scott Lemieux says:

        SOME congruence requirement.

        Well sure — “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” That’s it. Perhaps a law directly targeted only at non-discriminatory states might be so irrational as to fail that standard, but it’s hard to imagine any plausible example not meeting it. And, certainly, attempting to come up with some kind of intermediate scrutiny standard for Congress’s enforcement of the Reconstruction amendments is just neoconfederate gibberish.

        • Jeremy says:

          “attempting to come up with some kind of intermediate scrutiny standard for Congress’s enforcement of the Reconstruction amendments is just neoconfederate gibberish.”

          Even if you didn’t know how the case came out before reading it, you would know that things were headed downhill when the second sentence of the opinion invokes “basic principles of federalism.” Neoconfederate gibberish, indeed.

        • Dilan Esper says:

          I don’t know. I actually think the level of scrutiny question is sort of tough. City of Boerne v. Flores, etc. And there is real debate as to the extent to which Congress can define violations for purposes of Fourteenth or Fifteenth Amendment scrutiny.

          To my mind, the key point is that the VRA met any reasonable amount of scrutiny, because it actually did attempt to identify jurisdictions which had a history of discrimination and also provided a bail-out if they could show they were no longer discriminating.

          • Scott Lemieux says:

            I actually think the level of scrutiny question is sort of tough.

            It’s not tough at all. McCullouch works perfectly well. The “congruence and proportionality” standard is a disaster whose application is almost entirely arbitrary. (The fact that Shelby County couldn’t be bothered to identify a standard at all is instructive; in fact, it doesn’t really make a difference.) There’s absolutely no reason to read an extratextual restriction into the clear delegations of power provided by the 14th and 15th Amendments.

            I also don’t see how City of Boerne is relevant unless the First Amendment has a Section 2 I’ve missed.

            • Dilan Esper says:

              I could reply in a number of ways, but I will just quote the first sentence of the Wikipedia page on the Flores case: “City of Boerne v. Flores, 521 U.S. 507 (1997), was a Supreme Court case concerning the scope of Congress’s enforcement power under the fifth section of the Fourteenth Amendment.”

              We forget about incorporation sometimes because for most intents and purposes, saying a state or locality violates the First Amendment means the same thing as saying it violates a right incorporated into the Due Process Clause. But when we are talking about Congress’ power to remedy state constitutional violations, incorporation still matters and Flores is a Section 5 of the Fourteenth Amendment case, which is a direct parallel to Section 2 of the Fifteenth Amendment.

              And while “congruence and proportionality” IS vague, the problem is basically that the enforcement sections of the Reconstruction Amendments are not the same as the necessary and proper clause– they are tied to specific constitutional VIOLATIONS. So the idea is not implausible that there has to be some sort of actual violation of the Constitution before Congress can impose a remedy. That’s different from whether a law is necessary and proper with respect to the implementation of an enumerated power.

              At any rate, the Supreme Court agrees with me, and I don’t think the holding of Flores is THAT controversial (Ginsburg, Kennedy, and Stevens were all in the majority).

              As I said, what Roberts did in Shelby County IS hocus pocus, but it isn’t because the McCulloch standard should apply to the Reconstruction Amendments’ enforcement powers, but because (as the Warren Court said in McClung) the extensive evidence of discrimination justified the preclearance scheme, especially since states and localities that did not discriminate could bail out.

              • Scott Lemieux says:

                Yes, you’re right about the incorporation point, although since the right being addressed under due process clause is ultimately the 1st Amendment I still don’t believe the case is parallel. The argument from RBG’s authority is rather problematic since when it comes to the 15th Amendment she (correctly) believes the McCulloch standard should apply. Cite of Beorne involved the potential for Congress to narrow the rights protections granted to individuals, which makes things potentially sticky. The 15th Amendment involves only protecting the “rights” of states, making a higher level of scrutiny inappropriate. And, indeed, the fact that Roberts failed to identify a level of scrutiny and needed to invent a nonsensical “equal sovereignty” doctrine suggests that the majority doesn’t think City of Boerne is applicable in this context either.

                • Dilan Esper says:

                  I am not claiming that Ginsburg agrees with me about the Fifteenth Amendment. I’m saying that Flores, which applied a somewhat stricter standard than McCulloch when evaluating Congress’ enforcement power, isn’t really that controversial. Indeed, the dissent in Shelby County actually cites Flores in support of the proposition that where there are not violations in the record, Congress may not act.

                  This is a really sticky wicket, and it’s sticky for legitimate reasons. Not reasons having to do with “states’ rights”, but reasons having to do with the fact that the exercise of an enforcement power presupposes a violation, and that’s a different precondition than that required by McCulloch.

                  I just think you go too far in implying anyone who thinks this sort of thing should get some judicial scrutiny is a confederate revanchist.

                • Scott Lemieux says:

                  Well, I agree that Borene presents a sticky wicket. When you’re dealing with the 14th Amendment’s incorporation of specific individual rights in the first 8 amendments, subjecting Congress to only rational basis scrutiny might result in individual rights being watered down. These cases therefore are a combination of federal power issues (where rational basis is the correct standard) and individual rights (where heightened scrutiny is appropriate.) It’s not easy to resolve.

                  The 15th Amendment, however, presents no such problem. The only issue is federal vs. state power, in a an area where power is unambiguously delegated to the federal government. So in this context it is a “state’s rights” issue — Roberts’s neoconfederate arguments aren’t some random accident — and so despite your attempts to cite her as an authority RBG is clearly right and you’re wrong (even if you would reach a better result applying a standard that doesn’t constrain judges at all than Roberts would.)

  2. southend says:

    OT: Harold Ramis died.

  3. rea says:

    I wonder what happy, happy alternative universe Amel Ahmed inhabits, in which the Voting Rigths Act is fixable by Congress.

    • DrDick says:

      I thought perhaps she was from Washington or Colorado, but it appears not.

    • Snarki, child of Loki says:

      From the American Prospect article linkorated in the OP:

      …not only is Roberts’s opinion in Shelby County is a transparently outcome-driven enterprise with no discernible basis in the Constitution, it also leaves the question of what Congress can do to enforce the 15th Amendment maddeningly unclear.

      Oh, no, it’s completely clear what Congress can do: Impeach and convict.

  4. Gwen says:

    I think there is probably room for a constitutional standard of equal treatment of the states (either under the 5th amendment due process guarantee, or Roberts’ hand-wavy “equal sovereignty” structural argument) by the federal government, unless there is some good reason not to treat states equally.

    A lot of what Shelby County comes down to is whether or not the old voting statistics from 1972 constituted a “good reason.” Especially as Anderson noted, in light of the history and text of the 15th Amendment.

    It is really hard to think that Shelby County wasn’t a results-driven decision. I’m pretty sure courts have upheld sillier laws under a rational basis standard.

    What the Court should have done is say, “look, at some point in time… and for purposes of judicial efficiency we shall say 50 years in this situation… old statistics cannot justify current policy. We are going to toss this case on standing grounds as not being ripe, but we will not do so for any case filed after [date certain in the future, maybe one or two elections from now].”

    That’s the way a Court with a sincere desire to protect both states rights and people would work… to clearly put the other branches of government on notice that change is necessary.

    Suffice it to say, I don’t think this Court had a sincere desire to protect the rights of actual people.

    Maybe Roberts and company though that the dissent in NW Austin was sufficient to put Congress on notice, but if so, they vastly overestimate the interest that Congress (not to mention our media elite) have in the delusional ramblings of Justice Thomas.

    • Gwen says:

      Also, I am really not a big fan of the idea that any part of the Constitution grants plenary power to a single branch, unless it’s explicitly stated otherwise (for example, the bit about Congressional rules). Including art. 15 sec. 2.

      But there I go imposing my aesthetic preferences on black-letter law…

      It’s simply a fact that if I were ever elevated into a real position of power, that I would simply be insufferable.

      • Anderson says:

        Gwen, I don’t think that Congress could enforce the 15th by, say, abrogating due process of law. There are certainly limits on the enforcement power – just not the limits Roberts Corp. invented.

        • Gwen says:

          Duly noted! I think we would agree that Congress could not require the voters in Alabama to re-enact the Battle of Gettysburg with nerf guns every two years, no matter how amusing that might be.

          • Breadbaker says:

            More to the point, Congress could not impose that requirement under section 2 of the Fifteenth Amendment. Of course, it might be able to tax people who failed to reenact the Battle of Gettysburg in a prescribed manner. ;)

    • DrDick says:

      I can see the court ruling that states may challenge implementation of these remedies based on significant changes in the situation on the ground, but the burden of proof should be substantial and on the states.

    • Anonymous says:

      Actually, “good reason” is too strong. From what I can tell, Roberts’ basic argument is that a renewal of the ’70s (or whenever) formula in 2006 is actually irrational – it fails rational basis review. He takes himself to simply be applying Warren’s standards in Katzenbach.

      If I am not mistaken, SCOTUS under current precedent could find that a provision of law is unconstitutional even where Congress is acting with maximal authority, as here under XV/2, if it finds that Congress did not have a rational basis on which to pass the law. On that reading, the equal sovereignty principle is completely non-functioning. He’s assessing the law on the same basis has if there were no such principle.

      I’d be interested in Scott’s take on that view. Am I mistaken in thinking rationality is required n the absence of some competing interest? That would explain Robert’s sense that he needs some interest of the states to baance against Congress plenary authority under the XV Amendment. Warren’s initial finding was that the federalism imperative itself was that was – i.e., where he says that extraordinary measures have to be justified by extraordinary facts, the extraordinary measures were not the unequal treatment of the states, but rather simply the basic mechanisms of the law – the initial law essentially disallowed states from making any election laws at all without preclearance, and I think ballot was added later to help moderate this affront to federalism. The coverage formula was devised to address this need for extraordinary facts – to limit the extraordinary measures only to where those facts obtained.

      Roberts is now, AFAICT, just wrt to deciding Shelby County, pretty much just saying that that coverage formula no longer relates to extraordinary facts, and so the extraordinary measures are no longer justified.

      So where does equal sovereignty come into that argument? It doesn’t have to, that I can see. He cold clearly arrive at that decision without the aid of an invented principle that the law can’t tree states differently without good reason (or without a rational reason, which, again, would be simply a redundant requirement – pure dictum). So why does he bother? Clearly he has a larger project in mind. He wanted to get this principle as firmly established as doctrine as he can, so that he can use it to govern. The intent is clear going from NAMUDNO to Shelby County.

      The question I would have for you is, what foes it mean for there to be Room for” such a principle? Yes, clearly there could be room for it, and you could argue there has been a political norm in place assuming it in most lawmaking in our history. The issue is whether it’s ever existed as a legal doctrine in federal jurisprudence, or has any basis in the text of the Constitution. Otherwise, it’s just simply a newly devised doctrine he wishes to advance for his judicial purposes. Liberals, of course, have to account for an objection thereto that doesn’t work against relatively recent precedents that are also not clearly based in previous doctrine or text. Those distinctions are, of course, very makable, but they don’t make themselves.

      • Anderson says:

        From what I can tell, Roberts’ basic argument is that a renewal of the ’70s (or whenever) formula in 2006 is actually irrational – it fails rational basis review.

        The reason you have to say “from what I can tell” is that, as Ginsburg taunted in her dissent, Roberts’s opinion for the Court never actually identifies its standard of review.

        The copious findings by the Congress when it renewed the VRA – treated more fully in the D.C. Circuit’s opinion than in Ginsburg’s dissent, and of course ignored by Roberts – meet any rational idea of “rational-basis review.”

        • MDrew says:

          Absolutely on both points. But I do think if you read through Shelby County it’s pretty easy to understand as Roberts fancying himself simply applying Warren’s tests, which included rational-basis review for the precise nature of the coverage formula, with a claim that the formula no longer has a rational relationship with the actual geographic distribution of voting discrimination in the law. This renders the whole equal sovereignty issue just a superfluous add-on to the basic logic of the opinion.

        • Scott Lemieux says:

          The reason you have to say “from what I can tell” is that, as Ginsburg taunted in her dissent, Roberts’s opinion for the Court never actually identifies its standard of review.

          Precisely. The standard of review seems to be “whatever level is necessary to reach our a priori conclusion that Section 4 is unconstitutional.” The “equal sovereignty” stuff seems premised on the idea that if one terrible argument isn’t enough maybe 3 or 4 would be better.

      • Mike D. says:

        Just so it’s clear, I absolutely believe that Section 4 remains perfectly supportable as a rational way to determine coverage – especially with the opt-in and opt-out provisions. My main point is that the equal sovereignty business is basically meaningless in the decision. As Scott says, it appears to just be an alternative argument that isn’t necessary for the operation of the primary reason he finds the provision invalid. Realizing that lawyers routinely offer parallel justifications for a given conclusion, that’s fine, but this one happens to be conjured out of thin air, making it rather transparently an effort to establish a precedent for future use, not really a free-standing justification for the finding. It’s just kind of there.

    • Scott Lemieux says:

      I think there is probably room for a constitutional standard of equal treatment of the states (either under the 5th amendment due process guarantee, or Roberts’ hand-wavy “equal sovereignty” structural argument) by the federal government

      The 5th Amendment protects individuals. States don’t have due process rights.

      What the Court should have done is say, “look, at some point in time… and for purposes of judicial efficiency we shall say 50 years in this situation… old statistics cannot justify current policy.

      No. The Court should have said “whether or not it’s our preferred policy Congress has the authority to pass any legislation rationally related to vote discrimination.”

      • Gwen says:

        But surely individuals in states are entitled to have their states treated equally.

        If you were to put the state of Mississippi on double-secret probation, that would be a 5th Amendment violation.

        • Tybalt says:

          No they aren’t, and stop calling me Shirley.

          You can make an argument that an individual in MS is entitled not to be discriminated against solely because of his state of residence or origin, but equally you can’t find me an individual in such states who has been so discriminated against because of the enforcement of, for example, the VRA.

          In any case, rational basis is well made out, as has been shown ad nauseam above.

        • Anderson says:

          “But surely individuals in states are entitled to have their states treated equally.”

          Nope.

        • Scott Lemieux says:

          But surely individuals in states are entitled to have their states treated equally.

          Nope. [Ed: or what Anderson said.]

        • cpinva says:

          “If you were to put the state of Mississippi on double-secret probation, that would be a 5th Amendment violation.”

          if you did that, they wouldn’t know because, well, “double-secret”.

      • Gwen says:

        Also, it’s my view that rational basis ought to mean something, and that social facts carry expiration dates.

    • Barry says:

      “A lot of what Shelby County comes down to is whether or not the old voting statistics from 1972 constituted a “good reason.” Especially as Anderson noted, in light of the history and text of the 15th Amendment.”

      As I understand it, there was a process in place for several decades where a state could get out from the restrictions, by showing that they weren’t doing that sh*t. They quite deliberately chose not to.

  5. DrDick says:

    All the best conservative doctrines derive from thi8n air. Most, however, arise from less savory locales.

  6. Srsly Dad Y says:

    On the one hand, one might wish that the liberal sane justices would resurrect the old Justice Black tactic of just concurring in results they are voting for when the CJ is writing, rather than joining the CJ’s opinions; but on the other hand, the reason they don’t do that is probably that they’d forfeit influence over the text entirely.

    • Anderson says:

      but on the other hand, the reason they don’t do that is probably that they’d forfeit influence over the text entirely.

      I don’t see how: “change paragraph 92, or I’ll won’t even join in result” still gives some leverage.

      • Srsly Dad Y says:

        Scott seems to think Breyer and Kagan exercised leverage on the Medicaid expansion piece. I think it’s a safe assumption that the liberal justices are smarter than I am and must have their reasons.

  7. Hayden Arse says:

    Leaving aside the merits of Shelby County, there has been a rising tide of federal courts citing dicta as precedent, particulary dissenting dicta. Dicta is, by its very nature, not relevant to the decision, and lacks precedential value in a common law structure. Even more confounding is reliance on dissenting dicta in judicial opinions. Were an attorney to cite the very same authorities to support its request for relief, the bench would rightly chastise said attorney if the dicta were not clearly identified as such. It is said that bad facts make bad law, but I am starting to believe that this old saw fails to hold bad judges accountable for their contribution.

  8. cpinva says:

    I wondered how long it would take, for you to opine on this article. I read it, and was less than whelmed by prof. ahmed’s rationale, which seems to completely deny (as does CJ Robert’s opinion) the existence of congressional remedies available, as identified in 15A.

  9. Royko says:

    In Shelby County, Roberts gets very pissy about the dissent’s refusal to take his exhumation of an (uncited) Roger Taney with sufficient seriousness: “the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance.”

    Aside from everything else, Roberts is wrong here, isn’t he? The dissent does consider the principle of equal sovereignty, to explain why it doesn’t apply and how Roberts is misusing it. Or is this just a case that RBG added a response after Roberts finished his opinion whining about her ignoring his made-up precedent?

    • Scott Lemieux says:

      Yes, exactly. RBG just cites Katzenbach, which is the only relevant precedent. Roberts is basically saying “if you don’t agree with my argument you must not have considered it,” which is comedy gold given the ludicrous shoddiness of his argument.

  10. Manju says:

    can someone lend me a hand? I’m unfamiliar with “stare circulus jerkus”. Is dictum involved? Where does a posteriori fit.

    does ipse dixit havea role? the whole thing just sounds contra boner mores.

  11. Piquoiseau says:

    “Equal sovereignty” was the brainchild of John C. Calhoun in arguing against the Wilmot Proviso, no?

  12. [...] text. In addition to the examples in the first link, there’s an excellent recent example: Northwest Austin. John Roberts’s faux outrage notwithstanding, it should have been obvious what was going on [...]

  13. […] that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts […]

  14. […] that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts […]

  15. […] provision suggesting a restriction on Congress’ Fifteenth Amendment powers, nor any precedent not authored by Roberts himself. As Judge Richard Posner observed in Slate, “The opinion rests on […]

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