Elie here. In sports, we assess the legacy of athletes after every game. In politics, we assess the legacy of elected officials after every vote or scandal. So why can’t we do the same for Supreme Court justices?
In case you’ve been living under a rock, it’s been a pretty big week over at One First Street. The Court has decided a number of high-profile, controversial cases. Those decisions have come down with strong holdings, blistering dissents, and stinging concurrences. Each justice is aware that the words they’ve published this week could be around for a long time, long after they’re dead, and will be judged by history.
But who has time to wait for history? David Lat and I engage in some instant legacy analysis on what this week has meant for each of the nine justices on the Supreme Court. Let’s break it down in order of seniority, starting with the Chief….
Not the whole act, mind you. The prohibition on any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” is still constitutionally permissible. And folks can sue to enforce that.
But the preclearance requbirement is now effectively gone. That’s the rule that the federal government has to approve changes to voting laws in certain jurisdictions that haven’t been so great about race – in that folks registering black people to vote had been murdered in there, or, they’d had really bad records of African-American voter turnout in the past.
Strictly speaking, the preclearance requirement is not gone — it just no longer applies to any jurisdiction in the country any longer. The Court invalidated the method by which it is determined which jurisdictions are subject to preclearance, rather than preclearance itself. So, now no jurisdiction is subject to preclearance — the preclearance formula is gone.
Many people who are concerned about whether black people are allowed to vote think that the preclearance requirement has been an important tool to make sure black people enjoy the right to vote.
Free at last, free at last, thank God almighty, the South is free at last.
After, man, like decades of having to deal with suspicion and preclearance, man, just because of its 400 year history of slavery and segregation, Chief Justice Roberts held Section 4 of the Voting Rights Act as unconstitutional. Section 4 is the section that outlines which states should be covered for “preclearance” by the federal government before they can change their voting laws. Overruling it overturns one of the biggest and most effective weapons against the Jim Crow South.
Section 5, which gives the government the authority to preclear certain states, still survives. The question is kicked back to Congress to update their “decades old” formula.
It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way.
– Charles Dickens
In addition to opening A Tale of Two Cities (affiliate link), this extended quotation kicked off Professor Pam Karlan’s comments when asked to provide some measure of sense to the Supreme Court’s rights jurisprudence this Term. And by that I mean she read the entire quote to an audience of people whose body language screamed out, “yeah, we got it” after the word “foolishness.”
The passage (at least the gist of the passage), however, is apropos. This Term saw a voter registration law struck down in Arizona, even though Section 5 of the Voting Rights Act is likely to follow it out the door. As Elie is quick to point out, the black community is likely to get hammered by the Court, yet Professor Karlan thinks that the gay community is going to win, either this year or next.
Karlan, and her fellow panelists at Netroots Nation, outlined a theory that ties these competing decisions together — at least until Monday, when the Court might shoot the whole logic down…
This morning the Supreme Court heard oral argument in the challenge brought by Shelby County, Alabama, to the Voting Rights Act. I’m not really concerned with the particulars of the argument as articulated by the attorneys (U.S. Solicitor General Don Verrilli for the government, Bert Rein arguing for Shelby County), or the substance of the justices’ questions. The Court has been jonesing to strike down Section Five of the Voting Rights Act, which requires certain jurisdictions to “preclear” changes to their election laws with the federal government to be sure that they aren’t racially discriminating against minorities.
Chief Justice John Roberts seems to subscribe to the butthurt view that after 400 years of the enslavement and oppression of African-Americans in this country, now the only way to protect the rights of minorities is to make sure white people don’t feel discriminated against. Justice Anthony Kennedy seems to think he can make policy for the rest of the country, even though Citizens United should have shown him that he has no idea how the real world works. And the other three conservatives on the Court, Justices Scalia, Thomas, and Alito, think that racial equality involves keeping your mouth shut while majorities do whatever they want.
The conservatives have the votes to overturn one of the most successful weapons against racism in this country, and I can’t say I’m really surprised that conservatives are eager to take this away.
But is anybody else getting a little sick and tired of Justice Antonin Scalia’s constant grandstanding? I don’t know if it was getting passed over for Chief Justice or if he’s really pissed he didn’t get to decide who won the 2008 presidential election, but isn’t his whole “conservative intellectual hero” act starting to interfere with his job as “impartial member of the judiciary”?
Hey, have you read Above the Law for like one single minute in the past month? If so, you probably know that we’re having this big blogger conference on March 14th at the Yale Club. Yeah, the Yale Club. You’ll be able to recognize me: I’ll be the only big… blogger guy surreptitiously holding a can of crimson spray-paint.
Speaking of coming, you should come. We’ve got CLE and all that. Click here to buy tickets to get CLE credit for listening to bloggers scream about stuff on the internet.
To refresh your memory, details on the panel that I’m moderating — almost entirely sober, mind you — follow.
My panel is called Blogs as Agents of Change, and we’re going to talk about whether all of these spilled pixels are actually making a difference. You know my view… just ask Lawrence Mitchell, but here are the panelists:
So you spent a considerable amount of time courting, selling and maybe even doing some friendly stalking of that attractive lateral partner candidate with a sizable book. After he or she ignored your emails and didn’t return your calls, a few weeks go by and you read a press release in the legal media announcing the recent move to a competing firm.
Rats. Another one got away from you. You cringe when you consider how much time was spent in meetings that did not bear fruit. Your heart aches when recall how you were led to believe this was a marriage made in heaven.
You have been rejected.
The sting of rejection is painful, even for fancy law firms. But you need to find a way that you can turn this disappointment into a legitimate learning experience.
No, this isn’t a pre-party before we come back next fall for the real thing. This IS the real thing. Quinn Emanuel is pushing the envelope on recruiting. The party is now. This is when you meet the partners and associates face to face. This is when we begin the dance that could land you an offer for your second summer BEFORE school starts in the fall.
First: You come to the party. Second: If you like us, you send your resume after June 1, 2014. Third: If we like each other, you get an offer.
We’re not waiting for fall. We’re not doing the twenty minute thing. This party is the real thing!
We hope you’ll join us, and look forward to meeting you.
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