Sunday, June 30, 2013

Reasons for the withholding of the third cheer

In my last post, I stated that I had "two cheers" for the Supreme Court based on its marriage equality decisions.  My principal reason at the time for only two cheers and not three was more or less because I had wished the court had found the wherewithal to declare a constitutional right to marriage equality.  I understand the reasons why the court couldn't or wouldn't do that, and I even have some reservations about the "standing" aspect of the case that struck down section 3 of DOMA (I'm not convinced that the court shouldn't have granted standing, but I'm also not convinced that the court was right to do so).

But there are other reasons to posit only two cheers for the court.

The first is that the court was, in my view, just doing its job.  I recognize that the court is a political institution, and that its decisions can go one way or another, and my preference is that it go one way than another, so I'm happy it went (mostly) my way and not that other way.  I also recognize that there are different modes of constitutional interpretation and different ways to approach civil rights issues, etc.  But at the end of the day, the court's job is to issue decisions, and it and its members deserve no special praise for doing so.  The justices get paid their salary and are free to retire if they don't like the job.

The second, more pressing reason, is some of the court's other decisions of this term, particularly in the Salinas case and the Voting Rights Act (VRA) case.  In Salinas v. Texas, the court decided, if understand correctly, that prosecutors could use a defendant's refusal to speak to police officers against him when the defendant hadn't been formally in custody at the time of the interrogation.  This seems to be one step toward limiting or curbing our fifth amendment right against self-incrimination.   [See Orin Kerr's commentary here.]

Some have suggested that because the basic holding was from a plurality decision--only 3 of the 5 justice majority signed on to the part of the decision that limited the defendant's rights--the decision is limited to this specific case and therefore is not established precedent in the way that a 5-4 decision would have been.  I'm not so confident.  People will cite what they want to cite, and subsequent justices will ignore or entertain the plurality opinion, and those who choose to entertain it will use it as one authority to curb fifth amendment rights even further. 

The VRA case, Shelby County v. Holder, invalidated a key provision of the Voting Rights Act of 1965.  This provision named certain states and certain counties of other states to be subject to what is called a "pre-clearance" requirement, which means that the U.S. Attorney General or a panel of three federal judges had to approve any attempts to revise state (or county) election laws or revise the boundaries of certain electoral districts.  The named states and counties were largely the same as those named in the original 1965 act (which has been renewed several times since, and the current challenge is to the latest renewal in 2006), and the court said that the 1965 formula the Congress used was outdated and reflected an unfair treatment of the subject states.

I'm willing to concede that the 2006 formula might not have been ideal, although I also strongly suspect that those states and counties are still subject to attempts by a majority, or at least a strong and influential plurality, of people to enact measures that will have the effect of limiting access to the polls by persons of color, and (incidentally or not), by poorer persons. 

I have a pragmatic objection and a more principled one.  The pragmatic objection is that, as I've just said, there may be attempts in the near future to enact measures that will have the effect of disfranchising a lot of people.  It's true that other states not covered by the VRA have taken or proposed such measures, and in a perfect world I would like all such attempts to be subject to pre-clearance requirements.  I find it exceedingly unlikely, however, that the current Congress, or one we might have in the foreseeable future, would pass a revised formula (or make the pre-clearance requirements national in scope).  (I'll note in passing that Molly Ball at The Atlantic seems to disagree with this view, but her argument is difficult to understand and contradictory, saying that it was hard enough to pass the renewal in 2006, and therefore people are wrong to think it would be easy now......which seems to me to support my view more than opposing it.)

My more principled objection is that the fifteenth amendment grants Congress the power to enforce its prohibition "by appropriate legislation" against denying the right to vote on the basis of color, race, or previous condition of servitude.  I actually believe Congress would have the power anyway, through inferences provided by the "necessary and proper" clause of the Constitution, but it's stated clearly in the fifteenth amendment so as to, in my mind, leave no doubt as to Congress's competence.

I don't believe the amendment immunizes Congress from any review whatsoever.  I can imagine some potentially arbitrary laws that might be passed by Congress simply in the name of enforcing the fifteenth amendment.  But I do believe the amendment grants a lot of deference to Congress's determination here, and the testimony and other studies the Congress undertook during the 2006 renewal process--even if it was an instance (I actually don't think it was) of just going through the motions--suggests to me something far from, and not even in the same ball park as, arbitrary.  The singling out of certain states and counties might have something of an inequitable effect (and again, I would support a national pre-clearance requirement, at least for electoral laws, but perhaps not for redistricting).  But the named localities are sites of historic abuses and current attempts at new restrictions.

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