The Roberts Court Saves Section 5 of the Voting Rights Act
Don’t you love it when the Supreme Court of the United States makes a concerted effort to avoid constitutional issues? Today, Chief Justice John Roberts got seven other justices together in a truly remarkable display of ignoring an elephant in the room. The WSJ Law Blog reports:
It’s in the waning days of June that the Supreme Court winds up its business for the term, typically with its most high-profile decisions. Today, one such decision was handed down from on high — the case known as Northwest Austin Municipal Utility District v. Holder.At issue in the case was the constitutionality of section 5 of the 1965 Voting Rights Act, which requires governments in so-called “covered” jurisdictions — state and local governments in areas that once practiced discrimination — to “preclear” changes in election procedures with the Justice Department to ensure that minority voters are protected….
Supreme Court followers and commentators had expected a narrow ruling in the case, with the constitutionality of section 5 possibly turning on the vote of Justice Kennedy. But the Court threw everyone a curve-ball, ruling 8-1 in an opinion written by Chief Justice Roberts that drew a narrower path — keeping Section 5 in place, but allowing the “covered” jurisdiction at issue — a utility district in Austin, Texas — to apply for exemption from the law.
After the jump, SCOTUSblog tells us that by avoiding the constitutional issue, the Court has put Congress on notice that it needs to get off of its ass if it expects section 5 to survive much longer.
The take from SCOTUSblog is that Roberts was not being ambiguous at all:
The decision unambiguously served notice that the Justices are prepared to invalidate the statute as it stands. Congress is now effectively on the clock: it has the period between now and the date that it decides a follow-on challenge by a covered jurisdiction that is not permitted to “bail out” of the statutory scheme to amend Section 5. If the statute remains the same by the time the next case arrives, the Court will invalidate the statute.Today’s ruling is thus as much subtext as text. An entire section of the opinion is devoted to the constitutional infirmities of Section 5. There is no counter-point. Nor do any of the Court’s more liberal members issue a reassuring concurring opinion indicating that Section 5 would survive a constitutional challenge - though some surely believe it.
The Law Blog has a great interview with election law specialist Rick Hasen. Even he is surprised:
What was the middle ground reached here?It’s kind of technical, but the court didn’t rule on the constitutionality of the section. Instead, the court found that this utility district can ask that it be let out of coverage of section 5. In other words, that it no longer have to seek preclearance whenever it makes a change in its voting procedures.
Why didn’t you foresee this middle ground?
Primarily because the statute is written pretty clearly that only states and other jurisdictions that register voters can ask for this bailout. It’s not something that’s supposed to be afforded smaller jurisdictions like this utility district. In a 1980 case called City of Rome, the court essentially held the same thing.
Yet the court found a way to see this interpretation was no longer one it needed to follow.
But according to SCOTUSblog, this decision is yet another indication of how things are going to be done in Mr. Roberts’s Neighborhood:
The Court’s opinion will go down in history I think as among the Chief Justice’s most significant, and a model for his philosophy of judicial minimalism, which plays out in this case in two separate respects. First, the Court gives Congress in the first instance the opportunity to exercise its constitutional responsibility to apply the Constitution. Second, the opinion brings together a wide majority of eight Justices for a result with which they can all agree.
Roberts managed to take a 5-4 decision one way or the other, and turn it into an 8-1 slam dunk (Thomas dissented — nobody seems to care why). That seems like a good day’s work.
Now we’ll see if Congress can do its job and fix the thing.
Quelle Surprise! The Unexpected Ruling that Saves Section 5 [WSJ Law Blog]
Analysis: Supreme Court Invalidates Section 5’s Coverage Scheme [SCOTUSblog]
Earlier: Chief Justice John Roberts: The Elephant in the SCOTUS Courtroom?
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Comments
Numero UNO!
First, again!!! Biatches!!!
Suck it 2
- 1
"Today, Chief Justice John Roberts got seven other justices together in a truly remarkable display of ignoring an elephant in the room."
No idea what you're talking about.
Can someone please translate?
As the title points out: It Doesn't Really Make Sense But Whatever
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What is interesting is that Justice Thomas' dissent is not really even a dissent. He just dissents in part because he would have gone further than the ruling and struck the provision as unconstitutional.
What is interesting about Justice Thomas' [sic] dissent?
Reading posts when Elie tries to blog on real legal issues is hilarious.
Stick to the layoffs and lawyer of the day. Or have Lat do these substantive legal stories.
It was a half-arsed "save."
And for every one ruling that Roberts and Alito get right. They get eight or nine wrong.
This is really something... one formerly interesting legal blog (Above the Law) quoting another formerly interesting legal blog (WSJ Law Blog) quoting other sources about a case neither blog has the legal skill or writing ability to analyze in any meaningful way...
The Court decided another case today that might be more up ATL's alley of late -- it was a special education case.
scoTTTus
Thomas, J. is becoming to SCOTUS as McComb, J. was to the California Supreme Court.
BTW, I met McComb at a LS cocktail party, and he was a pleasant fellow--much like (I would imagine) is Justice Thomas.
Ironically, however, the tokenism he attributes to affirmative action and other racially progressive policies, resulted in his appointment to SCOTUS in the first instance.
And no, Anita, I never believed you. Long-Dong-Silver? Please….
The guy rejected your absurdly transparent overtures and you chose to retaliate with nonsense.
That does not mean, however, that Justice Thomas belongs on the SCOTUS bench.
You make Roberts sound so valiant, instead of the insidious radical he truly is. he's simply teeing Section 5 for a constitutional knockout the next time around.
"Don't you love it when the Supreme Court of the United States makes a concerted effort to avoid constitutional issues?"
Elie,
Have you ever read Brandeis's famous concurrence in Ashwander v. TWA (1936)? No, I didn't think so.
I bet a wise Latina could have decided this better.
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14,
Bragging about reading a concurrence isn't going to get you laid anytime soon.
"I bet a wise Latina could have decided this better."
That is why SotomyYOUR will ve confirmed, NO?
What's the difference between the Supreme Commander of Iran and the Supreme Court of the US? The Supreme Commander can at least be removed by a group of former elders. The Supreme Court can only be removed by impeachment process. Both choose Presidents/Prime Ministers. See Bush v. Gore 2000. Both really rule their respective countries.
16,17,18
triple posting WILL get you laid. IMMEDIATELY. you will be fighting off the poontang with a stick. and by stick i mean your wang.
21,
This is 16-18. I'm like Lat. Wang4wang. If triple posting keeps the poontang away, all the better.
20-
The only difference is that soon SCOTUS will have a wise latina to decide everything correctly. The Supreme Commander of Iran never will have that and thus will never decide anything correctly.
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Who is this Mayor Soto person?
What the hell? This gets coverage, but the fact that Roberts promised to read over briefs showing that Obama is a fraud and a usurper gets no mention?
http://www.wnd.com/index.php?fa=PAGE.view&pageId=91763
Why is the mainstream media refusing to cover this story?!
12. Whatever failings Justice Thomas might possess, "tokenism" is not one of them. Indeed it is his startling individuality and refusal to conform with how minorities are supposed to think that has made him so unpopular amongst progressives. The left likes its minorities just so long as minorities do and think as they're told.
26,
Did you happen to notice the date on that article??? It DID receive some minor coverage three months ago, but since no one in their right mind expects the challenge to succeed, it is not being followed with vigor by the press.
25 - We're talking about Mario Soto, used to pitch for the Reds see http://en.wikipedia.org/wiki/Mario_Soto_(baseball)
"Now we'll see if Congress can do its job and fix the thing."
Fixing Section 5 would require nothing short of repealing it altogether. It's very premise is preposterous in 2009. But something tells me that's not what you had in mind.
As an aside, it's shameful that you feel competent to post about serious legal issues, Ellie. You are not Eugene Volokh. You're not even Eugene Onegin. Stick to writing smut about affairs with only a scant relationship to the point of this blog, and pretending the goofing off that you do is some form of "journalism". You're better at that.