Monday, June 22, 2009

The "Political" Supreme Court Avoids Constitutional Question Regarding the Voting Rights Act; Thomas Dissents

History of Voting Rights Act
Enacted in 1965, the Voting Rights Act is the most potent legislative response to voter disenfranchisement in the history of the United States. Although the 15th Amendment prohibits the denial of voting rights on the basis of race, until the 1960s, this constitutional provision went largely unenforced in most of the Southern states. During Reconstruction, President Grant frequently dispatched Union forces to protect blacks from violence at the polls. Even this support, however, could not prevent violence, such as the 1872 Colfax Massacre in Grant Parish, Louisiana. During the Colfax Massacre, 150 blacks were murdered as they attempted to secure the county courthouse from white Democrats who unlawfully claimed control. Until the passage of the Voting Rights Act, blacks in some Southern states could not vote whatsoever, due to racial terrorism and laws such as "poll taxes," which impeded political participation.

The Voting Rights Act forbids policies such a poll taxes that were blatantly designed to evade the 15th Amendment. It also prohibits any election law that systematically denies voting rights to a defined racial group.

Section 5: Preclearance Requirement
Section 5 of the Voting Rights Act requires that certain states that were among the worst infringers of the right to vote must get "preclearance" from the Department of Justice before enacting any changes to their election laws. This rule applies to political subdivisions -- like cities and counties -- within those states as well.

The 15th Amendment authorizes Congress to enforce its terms with "appropriate legislation." Since the passage of the Voting Rights Act, Congress has reauthorized Section 5 several times, most recently in 2006 -- for 25 additional years.

The Litigation Challenging Section 5
In Northwest Austin Municipal Utility District Number One v. Holder, the plaintiff, a subdivision of Austin, Texas, sued the United States, arguing that Section 5 exceeds the scope of Congress's authority to enforce the 15th Amendment. The plaintiff argued that because it was never found to have denied voting rights to persons based on race, it need not comply with the preclearance requirement. The lower court denied relief to the plaintiff. Today, the Supreme Court unanimously reversed the judgment below. Justice Thomas dissented in part from the Court's reasoning, but he concurred in the decision to reverse the judgment of the lower court.

Although the plaintiff asserted that Congress has exceeded its authority by requiring preclearance, it also contended that the Voting Rights Act contains a statutory "bailout" provision that allows subdivisions to escape the preclearance requirements under certain conditions. The plaintiff argued that it should prevail under either the statutory or constitutional claim.

The statutory claim gave the Court an escape hatch. Rather than resolving the controversial issue regarding the constitutionality of preclearance, the Court punted the issue and decided the case on statutory grounds alone. It reversed the lower court and held that the plaintiff should be able to prove that it meets the conditions for the statuturoy bailout. The case will now go back to the District Court for proceedings that concentrate on the bailout provision.

Justice Thomas, the lone dissenter, agreed that the lower court misapplied the statutory bailout provision, but he would have reached the constitutional question. Thomas would have held that the preclearance requirement exceeds the scope of Congress's authority to enforce the 15th Amendment.

The Supreme Court as Political Player
By declining to address the constitutional question, the Court has avoided deciding a very complex issue that divides many lawyers, legal scholars, and politicians. Many conservatives believe that the preclearance provision is unfair and unnecessary, while liberals argue that preclearance has allowed for the successful political participation of blacks and Latinos and that this success should mean the continuation, rather than cessation, of the policy. In 2006, conservatives in Congress deep expressed concern regarding preclearance, but they ultimately voted strongly in favor of reauthorization, perhaps fearing a backlash prior to the midterm elections.

These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives (particularly in light of the likely reversal of Ricci v. DeStefano).

Because the Court did not rule definitively on this issue, however, it will probably reappear in subsequent litigation. Depending on the politics of the moment and the composition of the Court, a subsequent case could provide the opportunity for conservatives to invalidate a remedial statutory measure that Congress strongly supports and that most political scientists, historians and legal experts credit for removing severe structural barriers to political participation among persons of color.

See additional coverage at the SCOTUS Blog.


Anonymous said...

Dear Mr. Hutchinson: Does this mean you agree with Thomas, though for the opposite reason he gave? Viz: he Court shoulda charged ahead, trampling all who got in the way bawling, we're the SUPREMES, get outa our way! Certainly Thomas thought so, and was a judicial activist in doing so. The other 8 mindful of what happened to the Hughes Court of 1934-37, were much more careful. Your fears that the "conservatives" are gonna destroy this beautiful statute are silly. The decision was 8-1. Thomas was stuck dissnting. I remind you that a dissent is an admission that you can't persuade a majority to go along with you, that "someday you'll all be sorry!" Sometimes the dissenter is right; much more often not. You say that the ball is back in the district courts. That's so, but because the 8 decided to follow the statutory path, tdhe ball is also in Congress's court. If Congress disagrees with what the 8 did, they can amend the VRA, and tell the Court to go jump in the lake. Whatever you think of today's decision, it left open the possibility that Congress, a lot closer to the people of the nation than the Court, can speak up, or not.

Please tell me how the "conservatives" are gonna demolish the VRA even if the constitutional issue is reached? Thomas needs four more votes and could not get the three obvious ones today. The imminent arrival of SS to the ranks of The Phew, the Crowd, the Heroines on the Court to keep the blue flag of Revolutionary Justice flying high before the movie starring Salma Hayek as SS comes out, should cheer you. Do you really think that The One is going to appoint Thomas/Scalia/Roberts/Alito clones to the bench? Pull that sliced-too-thin baloney out of your eyes. You write:

"These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives..."

Why the quote marks around "legitimacy"? Is this Court ruling legitimate, "legitimate," illegitmate, "illegitmate" or just:


I think the last choice may be what you really think, given your persistence in seeing the Court as an agent of social change so long as the change marches left, but something that must be braked with "superprecedents" when the leftward march turns into the idiocy of walking in circles.

I remind you of Harlan Fiske Stone, yelling at his brethren on the Hughes Court,: "Courts are not the only agencies of government with a capacity to govern." For heaven's sake, broadly speaking the Left in this nation has the Executive, the Legislative, and is mounting an assault on the Judiciary. The new dawn is breaking. What's the rush?

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg, I am not sure exactly what your post is trying to convey, but I did make out a few arguments. First, you question my argument that Court might some day invalidate Section 5. The only evidence you provide for this is the fact that only Justice Thomas voted to invalidate it today. But this is not proof that the votes were not there supporting his argument. Remember, the other justices only voted not to reach the constitutional question altogether; this does not tell us how they actually feel about the constitutional question. Nevertheless, the majority opinion raises many carefully worded criticisms regarding Section 5, and most of the early legal commentary embraces the notion that at least 5 justices believe that Congress has exceeded the scope of its 15th Amendment authority.

It is unclear why you think today's ruling will prevent the Court from later invalidating Section 5. The Court has declined to reach issues for various reasons in the past -- only to reach them in later cases. The Court declined to hear the first challenge to the line-item veto on "standing" grounds. It took the next case and invalidated the law.

A more extreme reversal is seen in the abortion context. In 2000 the Supreme Court held that a Nevada partial-birth law was unconstitutional because it lacked a "health" exception. Seven years later, the Court upheld a Congressional partial-birth law that lacked a health exception.

If a state -- rather than a subdivision -- challenges Section 5, there is absolutely nothing in today's opinion that indicates that the 5 conservatives will not vote to invalidate the provision.

You also argue that Congress can amend the statutory ruling, and I agree. I never criticized that aspect of the ruling; in fact, I did not criticize the ruling at all. It is unclear, however, whether Congress could create a more rigid "bail out" provision binding on subdivisions that were never found to have denied the right to vote to any racial group. That question was not before the Court today.

Finally, I placed "legitimacy" in quotes because it is a term that the Court, legal scholars, and political scientists use to describe the Court's reluctance to render decisions that it believes will damage it as an institution. It is a technical term warranting quotes, in my opinion. So you can save the conspiracy theorizing and psychoanalysis.

Anonymous said...

Dear Mr. Hutchinson: Hmmm. You don't understand me, and I don't understand you. It's a conspiracy, I tell you! Bring on Doc Freud to save the day!

A little more seriously, I repeat: if there were five votes to invalidate section 5 today, where were they. Consider the possibilities:

a) the votes weren't there at all, save for Thomas. Scalia, Alito, and Roberts really think secton 5 is swell. This does not seem too likely to me. I think SA&R detest section 5.

b) the votes were there, but this was the "wrong" case, i.e. striking down section 5 on constitutional grounds would be overreaching, and cause a backlash. Correct me if I am wrong, but I think this is what you believe, yes?

c) the votes were not there because SA&R detest section 5, but think Congress is within its rights to enact such a law, it's just that the district court misapplied the law, so we'll straighten them out. This is what I think happened.

Excuse me, while I take off all sarcasm. There. Now, entirely seriously, I find it difficult to imagine a future case that would be more promising for a Court to toss out section 5 on constitutional grounds. If they didn't do it, this time, what set of facts are going to make them do it in the future? I repeat, Thomas is guilty of judicial activism this time.

You write: "If a state -- rather than a subdivision -- challenges Section 5, there is absolutely nothing in today's opinion that indicates that the 5 conservatives will not vote to invalidate the provision."

Sure there is something in today's ruling. If my notion, option c) above is correct, the same prudential thinking that kept Thomas out there all by himself will stop them. Only if b) is right do you have cause for worry. This is why I'd like you to tell me what, in your view, would be a "better" case to throw out section 5 on constitutional grounds in the minds of the conservatives.

The abortion issue you cite is a fine example of why this sort of issue is best kept out of the courts. Why the differing results of the two cases? Because Roberts and Alito replaced Rehnquist and O'Connor. It is one thing for Congress, a creature directly elected by the people, to change its mind. It is another for the indirectly chosen by the people, with life appointments, to change its mind. Congress is much tougher, and can stand far higher levels of public abuse.

The poli scis and legal scholars have a peculiar notion of legitimacy. You need only look at the abortion rulings, which damaged the 20th century Court as much as DRED SCOTT did the 19th century Court, and yet were issued with great zest, to wonder just what they mean by legitimacy. This is compounded by the flat refusal of the Court in the same era as ROE to step into the Vietnam mess, telling the Executive and Legislative to get out now. The contrast is striking.

Quick! You look left and I'll look right and we'll defeat this evil conspiracy that stands in the way of mutual understanding.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

Greg, did you even read the opinion? It was not based on the Court's "respect" of Congress in the area of voting rights. Instead, it was explicitly based on an ancient judicial maxim which discourages the unnecessary resolution of constitutional questions. This rule applies in cases where state or federal laws are at issue.

So, the only "restraint" the Court exercised was its avoidance of constitutional discourse. It did not base its analysis on respect for Congress or the separation of powers. Indeed, as I have stated several times now, the majority opinion contains a lot of language that expresses likely disagreement with Section 5.

If the Court lacked a statutory basis for deciding the case, it would have been forced to deal with the constitutional issue. At least 4 justices would have likely deemed it excessive. Kennedy would likely follow along as well, but he is, of course, the wild card. You are reading a nonexistent judicial restraint argument into the case.

Here is the relevant language:

The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclear-ance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerableevidence that it fails to account for current political conditions....

Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference”....

We will not shrink from our duty “as the bulwar[k] of a limited constitution against legislative encroachments". . ., but “[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case”....

More than 40 years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system.... In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. ....

Hutchinson: Those are a lot of "qualifications." Several justices oppose Section 5, and if they have a better case (a state rather than a dinky subdivision) and no statutory hook to escape a con law ruling, then it is easy to see four or five justices declaring Section 5 excessive. This is the same language conservatives always use to strike down remedies.

Anonymous said...


Sotomayor flunks on getting the most basic principle of appellate law wrong – the Standard of Review.

In Huminski v. Haverkoch, 11/5/04, 03-7036 2d. Cir., Sotomayor reveals an ignorance of the law by failing to apply the correct standard of review to an important civil rights case. She found appellate review was for reversible error when the correct standard of review for such a case (summary judgment) is De Novo.

A simple google on, “standard of review for summary judgment de novo” supplies tens of authorities on the issue. I guess Sotomayor would rather be wrong than google on such a rudimentary issue. She also could have assigned her flock of law clerks to research the issue. Further, on a motion for rehearing specifically pointing out her error she did not act and correct it.

Here is the link to the Sotomayor summary order from this case in which she presided over.

See also,

Where the order states “For the Court”, it refers to Sotomayor and the 2 other judges on the case.

Empathy, not much empathy for this wrongly convicted and incarcerated citizen,

See a different case of mine, Huminski v. Corsones, No. 02-6201 (2d Cir. 10/07/2004) (“We review a district court's grant or denial of summary judgment de novo.”)

-- Scott Huminski
(202) 239-1252

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