[EL] Justice Scalia and protection for the states
Rick Hasen
rhasen at law.uci.edu
Wed Feb 27 16:57:40 PST 2013
I think your argument is far more persuasive (though it doesn't persuade
me) than what Justice Scalia said, and that it is not a fair
characterization of what Justice Scalia said. He was referring
specifically to the political fear that politicians would have voting
against the nice-sounding "Voting Rights Act."
On 2/27/13 4:53 PM, Derek Muller wrote:
> 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
> <mailto: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 alot 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.
>
> 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 92697-8000
> 949.824.3072 <tel:949.824.3072> - office
> 949.824.0495 <tel:949.824.0495> - fax
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
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> http://electionlawblog.org
>
>
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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