[EL] Justice Scalia and protection for the states

Wed Feb 27 22:38:29 PST 2013

With apologies for referring to Derek and Rick in the third person (along with Justice Scalia) even though they are part of the conversation:

As always, Derek makes a very good point. Let me suggest in addition that Justice Scalia and Rick may not be that far apart on constitutional method.

Rick says that Justice Scalia thinks states need special protection against Congress when members of Congress will be afraid of voting against the legislation that is at issue.

In an earlier blog post today (Feb. 27), Rick said (after quoting Adam Liptak) that the Court "can hide behind the fig leaf of just striking down the coverage formula, as I suggested they'd do in this Reuters piece. But the practical effect is to end section 5." http://electionlawblog.org/?p=47793.

Should the Court take into account the practical effect of its decision - with respect to whether Congress will then enact replacement legislation that is constitutional - in determining whether the coverage formula violates the Constitution? If so, then isn't Rick simply taking the other side from Justice Scalia? Perhaps Justice Scalia thinks courts have to look harder at the constitutionality of measures that members of Congress may have difficulty voting against. But Rick may be saying that the Court should be reluctant to strike down a statutory provision, if Congress would have difficulty enacting legislation that would constitutionally achieve the same desirable social goal.

That may not be a fair characterization of Rick's "fig leaf" comment. Perhaps Rick is saying that five members of the Court want (on constitutional or policy grounds) to eliminate section 5 entirely but don't want to admit it; they then will achieve their goal by striking down only the coverage formula. In effect, they would be counting on congressional gridlock to let them reach their desired outcome without taking the blame for it. If that is Rick's point, then it isn't the converse of Justice Scalia's. It could reflect a cynical view of the desire of those five members of the Court to impose their general policy preferences on the nation;  or it could reflect a constitutional avoidance approach: if the current coverage formula is unconstitutional, then there is no need to reach - and there may never be a need to reach - broader issues of whether something like section 5 with an updated coverage formula is constitutional. I wouldn't use the phrase "fig leaf" to describe such an avoidance approach, though here the Court might be using such an approach to protect itself as an institution, per Alexander Bickel's suggestion.

Best,
Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, February 27, 2013 4:58 PM
To: Derek Muller
Cc: Election Law
Subject: Re: [EL] Justice Scalia and protection for the states

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 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.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off

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Rick Hasen

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UC Irvine School of Law

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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<mailto:rhasen at law.uci.edu>

http://law.uci.edu/faculty/page1_r_hasen.html

http://electionlawblog.org
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