[EL] more news 7/26/13

[Rick Hasen]

Isn't she already on record on the constitutional problems with voter id 
in Crawford? This doesn't seem very different than Justice Scalia 
commenting that the constitution does not protect the right of a woman 
to get an abortion after having so written in a number of cases.


On 7/26/13 9:38 AM, Scarberry, Mark wrote:
>
> Is this a comment by Justice Ginsburg on the constitutionality of 
> voter id laws and other voting laws that are being enacted currently, 
> now that they need not be precleared? Or on their desirability? On 
> whether they are questionable enough that they should have been 
> subject to preclearance? These specific issues are currently in 
> litigation (right?) and may end up before the Court. Is this a 
> problem? I think Justices make general comments often, but these seem 
> specific to particular cases. Or maybe there's nothing here.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
> Sent from my Verizon Wireless 4G LTE Smartphone
>
>
>
> -------- Original message --------
> From: Rick Hasen <rhasen at law.uci.edu>
> Date: 07/26/2013 8:35 AM (GMT-08:00)
> To: law-election at UCI.edu
> Subject: [EL] more news 7/26/13
>
>
>
>     ...
>
>
>     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.”
>

-- 
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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130726/facc6c9a/attachment.html>