[EL] Justice Scalia and protection for the states

Wed Feb 27 16:53:55 PST 2013

Rick, I'm inclined to read Justice Scalia's comment in light of his
"comment . . . made earlier." That is, in an earlier exchange with Mr.
Verrilli, he characterizes VRA as "extraordinary procedures that deny the
States sovereign powers which the Constitution preserves [*sic*] to them."

I think that when one is engaged in the rather messy business of Fourteenth
Amendment Section 1 (e.g., Equal Protection) jurisprudence, the *Caroline
Products* point is a natural touchstone. But, even if the language of
countermajoritarianism is at work in Justice Scalia's, it is not in the
Section 1 context, and I don't think it's entirely appropriate to make an
analog to, say, rights of particular minority groups in the United States.
Equal Protection is essentially categories when the sovereign has acted
within its legitimate scope (e.g., a state defining marriage, Congress
defining a tax benefit), but in which we have an additional check on the
process that restricts the legislature from doing certain things.

In the Voting Rights Act context, however, we are at the prior question;
that is, we are asking whether this is within the legitimate scope of the
sovereign.

The protection from the Court, in this context, is oriented toward the
structure of the Constitution and its federalism framework. If certain
things are reserved to the States (recall the largely-undiscussed question
presented included a citation to the Tenth Amendment), like elections, then
it is incumbent upon the Court to restrict acts of Congress that go beyond
its authorized powers (i.e., the Elections Clause, the Fourteenth Amendment
Section 5, and the Fifteenth Amendment Section 2).

This is, of course, not a novel argument. It existed in *NFIB v. Sebelius*,
in which seven justices found that Congress exceeded its Spending Clause
authority by coercing states to accept funds; it existed in *Printz v.
United States* and *New York v. United States* and "commandeering"-like
cases.

Now, it may be that one views these federalism concerns as unpersuasive in
this context (e.g., that this is a legitimate act of Congress within its
authority of the Fourteenth Amendment). But I don't think it's right to
view Justice Scalia's argument as one in which states get "special"
protection. It's just an observation that structural constitutional
limitations function differently than, say, the Equal Protection Clause.

Or, perhaps I'm simply inclined not to overread the "normal political
process" point as anything other than a reminder that judicial review
exists for precisely such a reason--for the judiciary to act as a check on
the legislature when it exceeds its proper authority (whether that's
structural or rights-based).

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341

On Wed, Feb 27, 2013 at 3:31 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>    Scalia in Shelby County Case: Do States Need Special Protection from
> Courts? <http://electionlawblog.org/?p=47839>
> Posted on February 27, 2013 3:28 pm <http://electionlawblog.org/?p=47839>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> I was struck by this statement from Justice Scalia today at the oral
> argument<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf>in the
> *Shelby County* case:
>
> The problem here, however, is suggested by the comment I made earlier,
> that the initial enactment of this legislation in a — in a time when the
> need for it was so much more abundantly clear was — in the Senate, there —
> it was double-digits against it. And that was only a 5-year term.
> Then, it is reenacted 5 years later, again for a 5-year term.
> Double-digits against it in the Senate. Then it was reenacted for 7 years.
> Single digits against it. Then enacted for 25 years, 8 Senate votes against
> it. And this last enactment, not a single vote in the Senate against it.
> And the House is pretty much the same. Now, I don’t think that’s
> attributable to the fact that it is so much clearer now that we need this.
> I think it is attributable, very likely attributable, to a phenomenon that
> is called perpetuation of racial entitlement. It’s been written about.
> Whenever a society adopts racial entitlements, it is very difficult to get
> out of them through the normal political processes.
> I don’t think there is anything to be gained by any Senator to vote
> against continuation of this act. And I am fairly confident it will be
> reenacted in perpetuity unless — unless a court can say it does not comport
> with the Constitution. You have to show, when you are treating different
> States differently, that there’s a good reason for it.
> That’s the — that’s the concern that those of us who — who have some
> questions about this statute have. It’s — it’s a concern that this is not
> the kind of a question you can leave to Congress. There are certain
> districts in the House that are black districts by law just about now. And
> even the Virginia Senators, they have no interest in voting against this.
> The State government is not their government, and they are going to lose —
> they are going to lose votes if they do not reenact the Voting Rights Act.
>
> Even the name of it is wonderful: TheVoting Rights Act. Who is going to
> vote against that in the future?
>
> I’m going to put aside Justice Scalia’s provocative comment about racial
> entitlements, which is getting a lot of attention<http://abovethelaw.com/2013/02/voting-rights-act-oral-argument-just-how-drunk-with-power-has-justice-scalia-become/>.
> Rather, I want to focus on his idea that judicial involvement is necessary
> here because normal political processes are not working. This is a very
> familiar argument for judicial review (often associated with footnote 4 of
> Caroline Products, and with the work of John Hart Ely), that sometimes the
> political process is stuck and courts need to intervene to protect
> “discrete and insular minorities.”  The Court needed to get involved in
> redistricting, and impose the one person, one vote rule, for example,
> because gerrymandered legislatures would not fix the reapportionment
> problem themselves.
>
> It is one thing to talk about whether a particular group (say gay
> Americans, to take an example currently also before the court) need extra
> protection from the courts, necessitating a more searching standard of
> review. But it is hard to claim that *states* need extra protection.
> States can spend massive resources lobbying in Congress, and should have an
> exceptionally receptive ear from the state’s Senators and congressional
> delegation.  If state leaders in covered jurisdictions tried to do this in
> 2006, I was unaware of it.
>
> It may be true that in 2006 state leaders made a calculation that going
> against the VRA would be a losing political issue, but that’s not the same
> thing as saying that states were *powerless* to get protection through
> the normal political processes.  State leaders in covered jurisdictions
> made a choice—and likely not the same choice they’d make today.  (There’s
> been a sea change in attitudes toward section 5, driven in large part on
> having a Democratic DOJ in place during the last round of redistricting and
> at the height of the voting wars).
>
> Is Justice Scalia claiming that states are powerless in other arenas?  Or
> is he saying that the fear of being labeled racist stops the political
> process in its tracks, and prevents states from protecting themselves.
> Either way it seems a pretty flimsy argument to support extra judicial
> protection for some of the most powerful actors in the political scene.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D47839&title=Scalia%20in%20Shelby%20County%20Case%3A%20Do%20States%20Need%20Special%20Protection%20from%20Courts%3F&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>
>
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