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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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