Big Tuesday 2013

Since yesterday we didn’t get everything from the Supreme Court’s docket, here’s today’s action:

Koontz v. St. Johns River Management District. 5-4 in favor of the government actor, upheld existing requirements for regulatory takings. Majority opinion by Alito, joined by Roberts, Scalia, Thomas and Kennedy. Dissent by Kagan, joined by Ginsburg, Breyer, and Sotomayor.

Adoptive Couple v. Baby Girl. Termination of parental rights under Indian Welfare Act. 5-4 in favor of adoptive couple; the biological father lost parental rights. Majority by Alito, joined by Roberts, Thomas, Kennedy, and Breyer. Dissents by Scalia and Sotomayor, Sotomayor’s dissent joined by Ginsburg and Kagan and in part by Scalia. Separate opinion by Thomas on what looks sort of like abstention grounds.

Shelby County v. Holder. 5-4 vote. Section 4 of the Voting Rights Act is unconstitutional. (!) Opinion by Chief Justice Roberts, joined by Scalia, Thomas, Kennedy, and Alito. Concurrence by Thomas. Dissent by Ginsburg, joined by Breyer, Sotomayor, and Kagan. Opinion seems to be based on an assessment of what the Chief calls “current conditions” rather than conditions that existed in 1966, and “Congress may draft another formula based on current conditions” to enforce ban on racial discrimination in voting.

Same-sex marriage cases and one other still on the docket, no more opinions today. Either tomorrow or Thursday.

And I haven’t time to dig in much further than this, at least not for a while. I have to go to court, so feel free to discuss amongst yourselves in the comments!

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Some quick thoughts:

    1. These cases all fall along the typical “conservative-liberal” voting blocs, with Kennedy siding with the “conservative” majorities each time.

    2. Thomas appears to have his own reasons in each case.

    3. The Shelby County case pretty much guts the Voting Rights Act, notwithstanding the Chief Justice’s assurances to the contrary. At least in its current form. If Congress could somehow form a consensus to create a new and different Section 4, we could have a new Voting Rights Act, but the chances of this Congress forming a majority in both houses to order pizza seems slim to minimal.

    4. What is the fishing holdup with the same-sex marriage cases? Don’t they want to go home for the summer?

  2. One commenter at this blog, in one sub-thread a while back in which we came to discuss Andrew Cohen’s legal writing at the Atlantic, strongly implied that I was against the VRA, and I let it go without comment.

    Let me just go on record for that person and anyone who read that person’s comment that I am disgusted by the Shelby decision.

  3. Section 4 of the Voting Rights Act is unconstitutional.

    Of ourse it is, voting being a racial entitlement.

        • “Based on 40-year-old data showing racial disparities in voting that no longer exist…”

          The reason they no longer exist is BECAUSE of the VRA. People understand that, right?

          • How about one-day-old evidence that without pre-clearance Texas will go ahead with race-based gerrymandering and voter suppression?

          • The reason they no longer exist is BECAUSE of the VRA. People understand that, right?

            What’s that old Upton Sinclair line: It is difficult to get a man to understand something, when his ideology depends upon his not understanding it?

          • I don’t need this umbrella anymore… I haven’t gotten wet in the rain in years.

          • Getting more Republicans elected isn’t an ideology.

  4. The Adoptive Couple vs. Baby Girl one was a fascinating case. I had it flagged to write a post on. I still might.

    • And, with due respect to Burt, this one did not “fall along the typical ‘conservative-liberal’ voting blocs”; Breyer joined Alito’s majority opinion, and Scalia was in the dissent (partially joining Sotomayor’s dissent and also writing a solo dissent).

      • I haven’t read it yet but it might fall under the Bryer weirdness category.

      • Burt skipped his breakfast to get the post out at all in a timely fashion. Rushed work is more imperfect than the other kind.

        • Your rushed work is better than most people’s deliberate, considered work, Burt.

          Still, most important meal of the day and all…

          • Likely to be the same story tomorrow, unfortunately — more court, more demands on my morning time. My morning routine now consists of arising, walking at least two miles for exercise, breakfast, grooming, and then going to court. Breakfast is the first thing to give in the event that there’s time compression because if need be, I can eat a Clif bar in the car and enjoy all its soy protein goodness on my way to go do battle.

  5. So, reading the precis to the opinion – which is all I have time for – it appear the government made two tactical errors. First, it failed to show how current conditions – e.g. the various documented interference attempts in 2012, and changes in state voting laws since – still show a pattern of discrimination in the states covered; and second, that coverage of the sates was till required under those conditions. It also appears that the coverage restrictions of Section, if they had been written as national in scope even if applied to certain set jurisdictions, might have withstood scrutiny.

    • That is, the majority would have had to find a different fig leaf under which to hide their agenda.

    • As I remarked yesterday, this SCOTUS and the current DC Circuit Court have been moving in the direction of finding things that the feds (both Congress and the executive-branch agencies) can’t impose on the states. I said that on that basis alone, this outcome was likely. I suspect that to pass muster with the court, a replacement section will have to spell out the conditions under which a state (or sub-jurisdiction) will be removed from the list. And perhaps a set of conditions under which additional jurisdictions will have to be added to the list.

      • I suspect that to pass muster with the court, a replacement section will have to spell out the conditions under which a state (or sub-jurisdiction) will be removed from the list. And perhaps a set of conditions under which additional jurisdictions will have to be added to the list.

        The bail-in and bail-out provisions were already part of the VRA. Since 2011, something like 11 counties in Virginia have been “removed from the list.” Over the years, counties in North Carolina and Florida have been added to the list. LA County too, I believe.

        Under the section 4(b) that was just invalidated, a subdivision (sub-jurisdiction) basically had to show a clean record for 10 years and get the US Attorney General to sign off on the subdivision’s removal from the list.

        • I was unclear. I meant conditions with the balance of power running the other way than it does today. For example, the feds may find a state out of compliance, and if was a serious problem the state may have to go through the pre-approval bit for a few years, but if they’re good they automatically get turned loose. The burden of proof falls on the feds to show that a state continues to behave badly, rather than the state having to prove that they’ve made no mistakes for ten years. That seems to be consistent with the general direction that the SCOTUS and the DC Circuit are taking these days.

    • You know, IANAL, but I just can’t recall SCOTUS overturning laws based on ‘current conditions having changed’, or ‘once we passed and enforced a law against X, the rates of commission of X have dropped like a rock, so obviously we no longer need that law’.

        • Is strict scrutiny appropriate here, when there’s explicit Constitutional authority to address the problem?

          • Oh, I don’t know about this case. I just meant it as a reply to the specific question about this ever happening. I know I did some consulting work a few years ago for a company that constantly had to prove that discrimination still existed in order to prevent courts from ruling against state and local/county governments’ race-based programs for the hiring of contractors and sub-contractors.

          • This isn’t a question of strict scrutiny, since the relevant policy isn’t actually treating citizens differently on the basis of race or any other particularly suspect characteristic. It’s a states rights/separation of powers issue.

          • It seems to be about treating *states* differently. Seriously: the question is why does South Carolina have to prove they’re not disenfranchising minorities when Oregon doesn’t. Let’s see: because one has a centuries-long history of it?

          • Well exactly. States aren’t people. Strict scrutiny is generally used for cases that are decided under the 14th Amendment, meaning cases in which the government is treating citizens differently in ways that are impermissible. The 14th amendment doesn’t say a thing about treating states equally, so it wasn’t implicated in the VRA case. No 14th amendment means nobody cares about scrutiny, compelling state interests, or narrowly tailored policies.

  6. I’ll say this, for certain:

    If the GOP is happy about Section 4, they should actually be terrified. Because there really isn’t anything much more likely to entrench minorities in the Dem party than this. It’s maybe – maybe – a short term gain.

    Medium term, it’s a loss.

    • “If the GOP is happy about Section 4, they should actually be terrified. Because there really isn’t anything much more likely to entrench minorities in the Dem party than this. It’s maybe – maybe – a short term gain.”

      It’s clear by now that the dominant GOP strategy is to continue with voter suppression and gerrymandering until the demographics physically drag them out of office (and with the difficulties in changing the existing laws for Democrats, and Federalist Society judges, for a quite a while after being dragged out of political office). Part of this is that the Tea Party provides quite a stick; current GOP office holders who buck them too much will face a credible threat in primaries (unless they’re very strong). The carrot is that these methods will give the GOP lots of power (and money for office holders) for probably close to a decade, which means that any 50-something GOP politician/campaign executive can slide through to a well-paid retirement.

      I’ve noticed that most of the warnings I hear are not from current office holders, and in Rubio’s case he seems to be in full retreat.

  7. I seem to remember that the VRA was only passed after years of Southern states enacting one bad law after another to suppress the vote. First it was poll taxes, then it was goofy “literacy tests”, then it would be a “residency exam”, or proving the voter knew some randomly obscure section of the constitution by heart. Every time they were challenged in court, they lost, until Congress had finally had enough and passed the preclearance parts of the VRA because the “first hit is free” model meant that every unconstitutional requirement nevertheless impacted 3-4 elections before being overturned by the courts. It’ll be very sad to go back to the days of playing judicial wack-a-mole, having to try to stop the illegal vote-blockading of southern racists district by district and watching them reenact the same unconstitutional laws with tiny tweaks here and there.

    • You call that a bug, the current majority on the Supreme Court calls it a feature.

        • The Eleventh Amendment and the Younger abstention seem to me to be great evils; at minimum, the vehicle which not only allows or tolerates, but condones them.

  8. I am having a truly hard time not breaking the posting rules. The destruction of the VRA is obscene and so are the words I need to describe it.

    • I will issue a concurrence with you. The Voting Rights Act was one of the best pieces of legislation ever to come out of Congress. Along with the Civil Rights Act….

    • Texas is moving ahead with both VoterID and redistricting.

      I expect ACLU lawsuits tomorrow.

      • When I moved from Southeast Austin to Northwest Austin, I moved from San Antonio to Austin, voting-wise. Texas has been fishin’ with its districts to ensure Republican control of both its congressional delegation and its legislature for more than a decade now. And part of that has involved insuring that minority-majority neighborhoods get lumped in with large swaths of majority-majority territory. If I’m not mistaken, they’ve already been taken to court on VRA grounds for it, and the state won.

        • That’s what makes this ruling so appalling. States like Texas and Georgia keep trying to do the exact same things that caused passage of the VRA, but now their illegal tactics will survive an election or two before being ruled out and the damaging disenfranchisement will already have occurred. And once they get slapped by the courts, they’ll just tweak it and re-pass. Legislative wack-a-mole.

    • At the moment I am less daunted by the policy effect on the statute itself and the somewhat unpredictable practical effects on the ground than I am gobsmacked at the sheer ballsiness with which the Chief just makes up Constitutional requirements and blatantly ignores various sections of the actual-existing document (prominently the fifteenth Amendment) in his argument. This is as legally baseless a piece of Constitutional judging as has come down from this Court in decades or more.

      I’m sure the realization that I am grossly misprioritizing my reactions to those things (practical effect viz. legal holding) will come in sickening waves, but for now I can’t take my eyes off this Rosemary’s baby of a legal holding.

      • Somehow I think Bush v. Gore had less legal basis but I agree with your sentiment.

        • I have seen people in the field (legal academics, that is), pointedly say they think this was worse, but it’s by all means a matter of judgement.

  9. Re: The VRA

    Aren’t conservatives all about personal responsibility? Isn’t being subjected to additional scrutiny part of taking responsibility for one’s prior bad acts?

    • In 1960, my grandfather was registrar of voters for Dixie County, West Carolina. He saw too it that only one in four folk from THAT side of the railroad tracks actually got to vote. Now it’s 2013 and Dixie County is much more geographically and economically integrated. I don’t FEEL prejudiced myself and I’m moderately embarrassed at things grampaw did way back in The Bad Old Days. Still he was my grampaw and so I don’t feel like it’s right that I apologize for him and besides, I know in my heart that I would NEVER do what he did. So don’t you be presuming I’m a bad man, Mr. Yankee. “Personal responsibility” means I’m accountable for what I do, not for what Grampaw did.

      • Note the fallacy in this argument — it refers to individual people, not governmental entities. Different lifespans. The real question is, do you believe in institutionalized racism?

        • Since the only Dixie County is in Florida, I would assume the Burt is changing the details to protect himself.

        • This is an in-character articulation of the argument against Kazzy’s challenge. “West Carolina” is a generic southern state.

          • If only you had a map of fictitious states that you could have picked from. If only… 🙂

            Speaking of West Carolina, though, Slate apparently took down the website of their esteemed former congressman, Blanton Foghorn.

      • I’d be sympathetic to that argument if these states didn’t make continued efforts to disenfranchise folks which were only stopped because of VRA and preclearance. I’d be okay with reevaluating the determinations of what areas require it, but scrapping it altogether basically says there are no consequences for your actions, which flies in the face of a major tenet Republicans claim to care about.

        • I am going to link to your post whenever someone needs an example of a non sequitur.

          • Please explain the lack of logic.

            Here is my thought:
            1.) The VRA was struck down by conservative judges, on the grounds that the states in question shouldn’t face increased scrutiny because of their histories.
            2.) Conservatives tend to favor arguments based from or ending in ‘personal responsibility’.
            3.) The states in question have pursued approximately 2400 laws that were rejected under VRA in the past 25 years, in addition to what they did in the prior 23 years.
            4.) As such, it would seem that these states have demonstrated they cannot be trusted to make voting or elections law that do not violate the VRA.
            5.) As such, adhering to the notion of ‘personal responsibility’, these states should be treated differently because of how they’ve acted.

            Please note that when I refer to “states” I am referring to the governments of those states.

          • @Kazzy

            Your “lack of logic” is that 5 isn’t a logical conclusion, even if 1-4 are true. You might believe 5 is true as a matter of opinion, and I can’t say you are wrong per se. But it doesn’t necessarily follow from 1-4.

            To choose an example of this from the other side, when someone like Warren Buffet says that taxes are too low, Rush, Sean, et al all say that no one is stopping him from paying extra taxes. That is true, but just because Buffet believes that taxes are too low doesn’t logically mean that he personally should have to pay more voluntarily.

  10. Since he is much more elequent than I, George Will wrote an excellent column called “Why the Voting Rights Act had to go”.

    Gotta say, he is 100 percent on the money.

    • Nope.

      Two reasons:
      1.) On going efforts by the states in question to limit voting access, which were fortunately shot down under the VRA, demonstrate that the act is responding as much to current events as it is to history.
      2.) The notion that the VRA has served its purpose and thus can be discarded is akin to me selling my umbrella because I haven’t gotten wet in the rain in years.

      • LOL The Bader Ginsberg Umbrella Gambit (a term I just coined).

        The problem with this line of reasoning is that you are assuming that it is still raining out. The statistics say otherwise.

        PS Did you know that RBG used the umbrella analogy in her dissent? Anyway, I can’t say you are wrong. Hell, out of the 9 people whose opinion most matter, 4 of them agree with you. Verrilli just couldn’t convince Kennedy.

    • Hmm, a Republican wrote a column explaining why it’s OK to disenfranchise people who mostly vote Democratic.

      I’m convinced.

      • But it’s a george will piece. how could he be wrong?

        after all he still has the glory dust of St. Reagan on him.

      • Ladies and gentlemen, thank you for joining us for another installment of Mike Schilling Demonstrates Argumentum Ad Hominem.

        • Still no. But it’s closer than the last one.

Comments are closed.