Tuesday, June 25, 2013

Some Thoughts on Shelby County v. Holder and the Roberts Court: Part II, The Sloppiness of John Roberts

In my last post I discussed why I think John Roberts is brilliant. This post will discuss why I think he is wrong, and often sloppily wrong.

Roberts' opinion today in Shelby County v. Holder held that the current formula for which jurisdictions are subject to pre-clearance of new election laws is an unconstitutional infringement on the sovereignty of the states because it is no longer necessary. Everything about this holding is wrong.

First, the law is still necessary. Justice Ginsburg, in her dissent, points to multiple instances in the last twenty years of discriminatory voting laws that were stopped by pre-clearance, including an instance where an election in Kilmichael, Mississippi was canceled when the all-white Board of Aldermen realized there were an unusually high number of black candidates running for office. Cancelled the election! 2001! Chief Justice Roberts cites relative parity in voter registration and turnout rates as his primary factual justification that pre-clearance is no longer necessary. But if white officials can preemptively cancel elections, what good is being registered to vote? In the wake of this morning's ruling, various news outlets have highlighted other instances showing racially motivated electoral laws are not a thing of the past. See Mother Jones, The Nation, The Atlantic and The New Republic.

Second, even if the law were not necessary, that is for Congress to decide. We are not dealing with a law that discriminates against individuals on the basis of race and is thus subject to strict scrutiny by the courts. Congress was given plenary power by the Fifteenth Amendment to the Constitution to enforce the provisions of that amendment. The Supreme Court should therefore defer to Congress on whether the law continues to be necessary.

What really gets me about this opinion though is the invocation of "state sovereignty." The evolution of "state sovereignty" in our founding documents has been to progressively reduce it. Why the new federalists on the Supreme Court have been trying to resuscitate this doctrine is beyond me. Here is a brief historical survey as to why no argument as to "state sovereignty" will ever convince me.

When the colonies declared their independence in 1776, it was assumed that each of the new states would retain their sovereignty within a loose confederation. This was codified by the Articles of Confederation. The Articles of Confederation did not work. They did not work because the central government, such that it was, had no real authority because actual authority resided in the states.

The Constitution of 1787 was crafted to reduce the power of the states. The federal government was given authority over, for example, interstate commerce. It contained a supremacy clause that made the Constitution and federal law superior to state law. The states retained significant authority, however. The Bill of Rights, for example, restricted the authority of the federal government, but not state governments.

The Constitution, as stated in the preamble, came directly from the people. It was created by a special convention and ratified by special conventions. It was not a compact between the states. States cannot withdraw from the Constitution because it is not a contract to which they are parties. We fought a civil war to settle this question once and for all.

In the wake of the Civil War the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution were adopted. These amendments restricted the sovereignty of state governments. States can no longer endorse slavery, apply the law unequally based on race, or deny the right to vote based on race because of these amendments. Prior to the Civil War, these actions were firmly encompassed with the sovereignty of the individual states. The fact that Congress did not exercise its enforcement authority to any great degree between the end of Reconstruction and the 1960s did not change the basic fact that the Civil War and the Civil War Amendments fundamentally altered the sovereignty balance in our federal system.

Reduction in state sovereignty did not end there, however. In 1913, the Seventeenth Amendment established the direct election of United States Senators. Prior to that, Senators were chosen by state legislatures. Senators thus went from being representatives of state legislatures to representatives of the people of a state. The Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments all also reduced state sovereignty over elections.

In discussing state sovereignty, Supreme Court Justices rarely invoke any one provision of the Constitution. They tend to talk about the structure of the document as a whole. They have used this structure to create a  judicial gloss on the Constitution recognizing the dignity of the sovereign states. In his memoir, Justice Stevens called this the most pernicious development in his years on the bench.

The states do retain a role in our system, but they are not sovereign. The people, and only the people are sovereign. The people, through the Fifteenth Amendment to the United States Constitution have entrusted the United States Congress with ensuring that the right to vote is protected. The Supreme Court owes Congress deferential treatment in this arena. There is no legitimate state sovereignty claim to the contrary, no matter what five men in robes say.

The people are sovereign and each citizen is equally sovereign. Citizens exercise that sovereignty through the franchise. Statutes and judicial rulings that limit the ability to exercise the right to vote strike at the very heart of our system of government.


Some Thoughts on Shelby County v. Holder and the Roberts Court: Part I, The Brilliance of John Roberts

I finally finished reading the opinions in Shelby County v. Holder and I am once again struck by the sloppy brilliance of Chief Justice Roberts.

First, the brilliance. Roberts' opinion is basically a procedural one. He goes to great lengths to emphasize that the substantive rights embodied in Section 2 of the Voting Rights Act (VRA) are not impaired by this decision. After today's sturm und drang there will be no immediate revolutionary actions that will focus the mind of the public. It is still illegal for a state or local government to, for example, pass a law requiring a literacy test to vote.

What has changed here is the procedure for enforcing this right. Instead of relying on the Justice Department pre-clearing election laws before they go into effect, either the Justice Department or individuals negatively affected by the law must sue to stop the law. This process is more time consuming and expensive. The natural result of this will be less VRA litigation.

Actually, I have skipped ahead of myself because Roberts' opinion does not even do that. It merely invalidates the current formula for determining which jurisdictions are subject to pre-clearance. This only adds to the brilliance. Theoretically, Congress could change the formula and still require some jurisdictions to submit to pre-clearance for changes in election laws. Due to the nature of the current Republican majority in the House of Representatives, this will not happen. You know that, I know that and Chief Justice Roberts certainly knows that. It's a brilliant tactical move that turns a seemingly minor procedural change into a major substantive one.

This is one more in a series of rulings from the conservative wing of this court that do not change substantive rights but place limits on procedures and remedies that makes the enforcement of these rights difficult or impossible. For example, Clapper v. Amnesty Int'l, U.S.A., where the court held that nobody has standing to sue over the constitutionality of the FISA amendments because nobody can prove the kind of particularized injury required in their too-stringent test of standing. This case was a big deal when it was handed down in February, but I have not seen anyone talking about it in the last few weeks since the Snowden revelations. President Obama's justification of the NSA's surveillance programs is that they are legal, necessary and effective. I am not in a position to independently judge whether they are necessary or effective. None of us are in a position to truly judge whether the programs are legal because the Supreme Court has ruled that nobody has standing to bring the case. Your Fourth Amendment rights still exist, they just cannot be enforced and there is no remedy for their violation.

This same spirit pervades yesterday's two employment discrimination cases. Hostile work environments are still against the law. But an employer is only liable for one if a supervisor was responsible or management knew or should have known about a hostile environment and did nothing to correct it. Vance v. Ball State University narrowed the definition of supervisor for purposes of Title VII. Your right to be free from a hostile work environment has not changed. What has changed is your ability to enforce that right effectively. It reduces the burden on the employer to be sure a workplace is not hostile and increases the burden on those who have been discriminated against to prove their case. Retaliation for attempting to enforce one's right to a non-hostile environment or adverse employment conditions resulting from one's race or ethnicity had previously been seen as just as bad as the action itself. No longer. University of Texas Southwestern Medical Center v. Nassar changed all that. Under Title VII if you are fired because of your race, you only need to prove that your race was a substantial factor in that decision, not that you never would have been fired but for your race. Due to a strained reading of the statute, the Court held yesterday that if you are fired in retaliation for speaking up about workplace discrimination you must prove that retaliation is the only reason you were fired, a much higher standard for an individual to meet. Again, the basic right has not changed, but obtaining a just remedy when your rights have been infringed is more difficult.

Another example from this year is American Express Co. v. Italian Colors Restaurant. That case upheld an individual arbitration clause prohibiting class actions imposed by AmEx on the businesses it contracts with. The amount of damages owed to any individual small business wronged by AmEx's violation of antitrust law is only in the tens of thousands of dollars. Proving the violation would cost hundreds of thousands of dollars. The only economically feasible way to enforce the rights of small business under antitrust law is to allow them to file a class action. The court held that they bargained away that right by agreeing to AmEx's terms and conditions for accepting AmEx cards. These businesses still have rights under antitrust law, they just cannot afford to enforce them, effectively extinguishing any remedy.

Why do all this? I am not sure, but I do have a theory. Making the law of procedure more complex makes the priestly class of lawyers more necessary and reduces the untrained layman's access to the law as a means of redress of wrongs. The expense of obtaining a legal degree makes lawyers expensive and reduces the number of lawyers available to the non-wealthy and powerful, i.e., most everybody. The effect of prioritizing procedural gimmicks over substantive matters of legal rights and wrongs therefore further entrenches the power of the already wealthy and powerful while maintaining the legal fiction that all are equal before the law. The fact that everyone has the same rights and is therefore equal, even though there is a huge imbalance in the resources necessary to the ability to enforce those rights, dovetails nicely with the political ideology that we all have equality of opportunity, even though structural impediments at all levels of our society privilege the already privileged over the mass of society.

That brings me to the second level of Roberts' brilliance: the way he set up today's Shelby County opinion with 2009's opinion in Northwest Austin Municipal Util. Dist. No. One v. Holder. Northwest Austin was an 8-1 decision disposing of the challenge to the VRA on statutory as opposed to constitutional grounds. The four liberal justices on the court at the time (Stevens, Souter, Ginsburg and Breyer) went along with the decision because they could deal with the outcome at the time. Chief Justice Roberts' opinion, however, noted that the VRA pre-clearance formula raised constitutional questions. Roberts cites Northwest Austin extensively in today's opinion in Shelby County. He even includes a slap at Justices Ginsburg and Breyer:

"The dissent states that '[i]t cannot tenably be maintained' that this is an issue with regard to the Voting Rights Act, post, at 9, but four years ago, in an opinion joined by two of today's dissenters, the Court expressly stated that '[t]he Act's preclearance requirements and its coverage formula raise serious constitutional questions." Northwest Austin, supra, at 204. The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."

Slip Op. at 22. Here, Chief Justice Roberts may have let his obnoxiousness get the better of him in a way more typical of Justice Alito. The difference between holding and dicta is generally covered in the first week of law school. The "constitutional questions" raised by Northwest Austin were not remotely essential to the basic holding of that case, which was decided on statutory grounds. But this gets into the sloppiness of Chief Justice Roberts, which I will address in more detail in my next post.

The Shelby County-Northwest Austin nexus also spells trouble for affirmative action at public universities. Yesterday's 7-1 holding in Fisher v. University of Texas is similar in that it did not change the substance of the law and ruled narrowly, but signaled that change could be in store. Again, it did so with votes from the liberal wing of the court. This time, however, Justice Ginsburg was having none of it. The opinion in Fisher was written by Kennedy, but it had the Chief Justice's crafty fingerprints all over it.