[EL] more news 7/26/13

Fri Jul 26 08:35:47 PDT 2013

    Justice Ginsburg: Liberal SCOTUS Justices Were Suckers, Not Savvy,
    in Joining 2009 Voting Rights Case
    <http://electionlawblog.org/?p=53548>

Posted on July 26, 2013 8:32 am <http://electionlawblog.org/?p=53548> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Justice Ginsburg, in a rare interview with AP 
<http://hosted.ap.org/dynamic/stories/U/US_VOTING_RIGHTS_GINSBURG?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> 
has given insight into a recent strategic choice made by the liberal 
Supreme Court Justices.

In a recent Slate piece, 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html> 
I asked whether the liberal Justices are savvy or suckers for signing on 
to recent voting rights and affirmative action rulings:

    At first glance, the 7--1 vote in the /Fisher/ affirmative action
    <http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf> case
    decided by the Supreme Court is puzzling. While the decision about
    the University of Texas' admissions policies was essentially a punt,
    putting off for another day the future constitutionality of
    affirmative action programs, two of the court's liberals (Justice
    Sonia Sotomayor and Justice Stephen Breyer) joined in an opinion
    that seemed to impose a very tough hurdle for any program's
    constitutionality in the future. (Justice Ruth Bader Ginsburg
    dissented, and Justice Elena Kagan recused herself). The ruling
    followed a voting decision
    <http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf> the week
    before, when all four of the court's liberals signed on to Justice
    Scalia's entire opinion in an Arizona voting case, which plants the
    seeds for new state attacks
    <http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>
    on federal voting laws. And in 2009, all four liberals signed onto
    an opinion <http://www.law.cornell.edu/supct/html/08-322.ZS.html>
    calling into question the constitutionality of the Voting Rights
    Act, an opinion that Chief Justice John Roberts relied on heavily in
    his new /Shelby County /decision
    <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> striking
    down part of the act.

    What gives? Are the liberal justices acting as suckers for going
    along with these opinions, allowing conservatives the time bombs
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398> to go
    off
    <http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>
    in future cases? If, as Adam Liptak
    <http://www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html?pagewanted=all>,
    Emily Bazelon, andI
    <http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html?hp>
    have argued, Roberts is playing a long game to move the court far to
    the right over time, why are the liberals playing along?

A recent Justice Breyer speech <http://electionlawblog.org/?p=53347>, 
described by Michelle Olsen 
<http://appellatedaily.blogspot.com/2013/07/breyer-reacts-to-affirmative-action.html>, 
indicated that Justice Breyer thought he was savvy to sign on to the 
Fisher case, as case which, as Josh Blackman recently noted 
<http://joshblackman.com/blog/2013/07/23/why-did-breyer-but-not-ginsburg-join-roberts-in-nfib-phew/>, 
Justice Ginsburg declined to join.

But now Justice Ginsburg has expressed regrets to the AP about signing 
onto NAMUDNO, the 2009 8-1 decision (joined by all except Justice 
Thomas) which paved the way for last month's /Shelby County/ decision 
killing 
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html?_r=0> 
off the preclearance regime 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>of the 
Voting Rights Act. Here's what she told the AP 
<http://hosted.ap.org/dynamic/stories/U/US_VOTING_RIGHTS_GINSBURG?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> 
(h/t How Appealing <http://howappealing.law.com/072613.html#052087>):

    Roberts relied heavily on another decision from 2009 in which the
    justices essentially left the law alone while warning Congress about
    serious problems with the data and urging lawmakers to do something
    about it. They didn't.

    In that case, Ginsburg joined Roberts and every justice but Clarence
    Thomas to leave prior approval in place.

    Ginsburg said she probably shouldn't have done that. "I think in the
    first voting rights case, there was a strong impetus to come down
    with a unanimous decision with the thought that maybe Congress would
    do something about it before we had to deal with it again," she
    said. "But I suppose with the benefit of hindsight, I might have
    taken a different view."

In the same interview, Justice Ginsburg said that the push for strict 
voting laws after /Shelby County/ is sadly predictable:

    The notion that because the Voting Rights Act had been so
    tremendously effective we had to stop it didn't make any sense to
    me," Ginsburg said in a wide-ranging interview late Wednesday in her
    office at the court. "And one really could have predicted what was
    going to happen."

    The 80-year-old justice dissented from the 5-4 decision on the
    voting law. Ginsburg said in her dissent that discarding the law was
    "like throwing away your umbrella in a rainstorm because you are not
    getting wet."

    Just a month removed from the decision, she said, "I didn't want to
    be right, but sadly I am."

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

    In Case the North Carolina AG Doesn't Want to Defend North
    Carolina's Tough New Voting Law...
    <http://electionlawblog.org/?p=53545>

Posted on July 26, 2013 8:13 am <http://electionlawblog.org/?p=53545> by 
Rick Hasen <http://electionlawblog.org/?author=3>

A bill giving standing 
<http://www.wral.com/lawmakers-give-leaders-legal-standing-/12705623/> 
to legislative leaders.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting 
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off

    "North Carolina Passes Country's Worst Voter Suppression Law"
    <http://electionlawblog.org/?p=53541>

Posted on July 26, 2013 7:30 am <http://electionlawblog.org/?p=53541> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Ari Berman blogs 
<http://www.thenation.com/blog/175441/north-carolina-passes-countrys-worst-voter-suppression-law#>.

MORE 
<http://www.prwatch.org/news/2013/07/12195/nc-passes-voter-suppression-measures-doj-moves-protect-voting-rights-tx> 
from Brendan Fischer.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
Comments Off

    Van Hollen/Democracy 21/Seth Waxman Amicus Brief Filed in McCutcheon
    <http://electionlawblog.org/?p=53539>

Posted on July 26, 2013 7:29 am <http://electionlawblog.org/?p=53539> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here. 
<http://www.democracy21.org/wp-content/uploads/2013/07/McCutcheon-D21-Brief.pdf>

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
Comments Off

    CLC Amicus Brief in McCutcheon <http://electionlawblog.org/?p=53537>

Posted on July 26, 2013 7:28 am <http://electionlawblog.org/?p=53537> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2199:july-25-2013-scotus-brief-defends-aggregate-contribution-limits-to-prevent-return-of-million-dollar-soft-money-donors&catid=63:legal-center-press-releases&Itemid=61>.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
Comments Off

    "DOJ Sues Texas Under Alternative Voting Rights Provision"
    <http://electionlawblog.org/?p=53534>

Posted on July 26, 2013 7:26 am <http://electionlawblog.org/?p=53534> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Marcia Coyle and Todd Ruger 
<http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202612526515&thepage=1>report 
for NLJ.

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

    "Rep. Sensenbrenner: DOJ is legally justified in going after Texas"
    <http://electionlawblog.org/?p=53531>

Posted on July 26, 2013 7:21 am <http://electionlawblog.org/?p=53531> by 
Rick Hasen <http://electionlawblog.org/?author=3>

The Hill reports 
<http://thehill.com/homenews/administration/313635-sensenbrenner-doj-is-legally-justified-in-texas-voting-rights-case>.

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> | 
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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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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