It wasn't undefined for lawyers they all understood that sections 4 and 5 were clearly under attack. But Congress thought that more findings and re-enacting the law would solve the problem which would have worked pre NAMUDNO and with liberal scholars, but obviously didn't work for the majority in Shelby.
I'm a libby lib liberal myself, so I don't claim to be unbiased in this and really would have liked the VRA to stay intact. That said, I am baffled by the ability of SCOTUS to declare something unconstitutional without actually saying where it contradicts the Constitution. I would hope that, regardless of personal politics, that the Chief Justice would be able to give at least the slightest indication as to why a law is unconstitutional so that it may then be remedied. This is not Calvinball.
Well the Shelby decision argued that on several fronts:
1) that the law treats the states unequally considering the massive amount of Congressional power the VRA exerts, thereby violating the equal footing doctrine. IE because the VRA didn't sufficiently explain why the VRA should single out some and not other states based on the formula in section 4, that the doctrine was violated.
2) That Amendment 14 and 15's grants of power was not meant to usurp state rights absolutely and that to justify burdens placed on the states there must be sufficient explanation to justify the ends of such power.
3) The VRA doesn't have sufficient justification for using the decades old formula and therefore the ends of preclearance under section 5 cannot be justified
4) That doesn't make the end unconstitutional but it does make the analysis to exercise Section 5 unjustifiable. Thus section 4, lacking congruence with the amount of power it exerts over states while failing to justify that power exercise with updated formulas means the justification for section 5 cannot stand (that justification being the coverage formula in section 4, thus section 4 is unconstitutional)
5) Congress is free to make a new formula or bail in jurisdictions on a showing of proof that preclearance should apply to the jurisdiction.
All of that is in Shelby v. Holder and they said it could be remedied with an updated formula.
Granted, quite a few people didn't think the equal footing doctrine applied this way: the equal footing doctrine kind of falls apart when applied this way on two levels:
A) The equal footing doctrine only applies to newly admitted states and their powers with respect to other states, not remedial measures exacted against the states for prior wrong acts under Amendment 14 and 15. If you carry this logic too far it means you have to treat all states equal for all federal laws and that can't possibly be right. Utah needs hurricane flood protection as much as Florida needs water rights from Idaho and Nevada.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
The Court in Northwest Austin (NAMUDNO) said that they had deep reservations about section 4 and 5 of the VRA but decided not to rule on the constitutionality of that issue because they resolved Northwest Austin on narrow statutory interpretation grounds. NAMUDNO didn't say the VRA was unconstitutional but forecast concerns about its validity without deciding that issue. Shelby is the outgrowing of Congress' failure to address the VRA when it didn't listen to the warning that the unanimous court in NAMUDNO gave.
If the Austin case was decided on narrow statutory grounds, then what business did the court have in professing their doubts on the constitutional question? I thought it was a basic principle of American jurisprudence that courts do not go beyond the case at hand.
Well the case presented itself as a direct challenge to the statute challenging the constitutionality of the law. A strong principal from the Court since Roberts has been to avoid overturning laws when a narrower statutory interpretation or constitutional principle can be applied to save the statute. In NAMUDNO the constitutional question was brought but the Court said "Look we don't think congress meant the formula and preclearance to apply to things like utility districts so we will exempt them from section 5 and the preclearance formula in section 4."
So the case did involve those con law questions but the court saved them for a different time by saving the VRA on different grounds.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
Well the case presented itself as a direct challenge to the statute challenging the constitutionality of the law. A strong principal from the Court since Roberts has been to avoid overturning laws when a narrower statutory interpretation or constitutional principle can be applied to save the statute. In NAMUDNO the constitutional question was brought but the Court said "Look we don't think congress meant the formula and preclearance to apply to things like utility districts so we will exempt them from section 5 and the preclearance formula in section 4."
So the case did involve those con law questions but the court saved them for a different time by saving the VRA on different grounds.
I guess I phrased myself poorly (not a lawyer). What I was going for was something like: I thought that if the court threw out a case, on, say, standing grounds, then they categorically refused to say how they would have ruled on the merits. And I thought that something similar would apply to the Austin case as described. Something like--once you've said enough to decide the case, do not go on saying additional things that do not strictly speaking need to be said.
Well, it was brought up 18 years early. it's not like the court just conjured it out thin air.
If Scalia were at all consistent in his own nonsense, he would not have ruled unconstitutional, he would have said it was the duty of Congress to decide (and they had as recently as 2006), not SCOTUS.
Because he presumes to not believe in legislating from the bench.
Except when it suits his political bent.
Congress had been told that the law was outdated and unconstitutional.
On what grounds?
That's not really relevant to why it was sent back. The point is that this did not appear out of nowhere. The court had previous decided that the law needed to be updated to remain constitutional. Congress failing to address that forced the court to make them address it.
Yeah, that was Roberts playing the long game. Considering his background, the ONLY ethical position he should have had on the VRA was recusing himself.
Well it comes from one of several theories about what to do when you think congress has done something wrong:
1) Fix it yourself as a judge (most activist)
2) Ignore the problem unless its unconstitutional
3) Tell congress to fix it
The two issues: The constitutional question and the statutory interpretation were not opposed to each other in this case. On top of that to explain why the constitutional question could be ignored required explaining what the constitutional interpretation is. To do otherwise would have left a huge hole in his judicial opinion in NAMUDNO. Think of it like this, when writing a paper where there are multiple theories to your conclusion, you have to address all of them or else you haven't fully justified your paper. The same exists here. To explain why the constitutional question could be avoided, discussion about the perceived imperfections of the constitutional issues needed to be addressed.
Remember Roberts opinion was joined by the entire Court and both liberals and conservatives in the law had reservations about the VRA. I'm not saying that they all agreed about the solution but they certainly didn't think Roberts opinion was off the wall in either case.
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
I'll note those three principles come from originalism and conservative vs. liberal thought for originalists. If you aren't an originalist then the analysis is way more amorphous and harder to pin down. You could use other touchstones like precedent, other important principles in constitutional law, modern understanding, common law, or modified original understanding. Also note, Justice Scalia hates this other stuff.
@MrMister No, you are correct. American judges are supposed to only answer cases in the narrowest way possible, and broader musings are considered non-binding dictum.
At the end of the day the Supreme Court can do whatever it wants, though, which in this case included citing recent dictum as if it represented longstanding principles.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
I don't know why you keep saying it's dictum. Anything in an opinion can end up being precedent. I mean, some of the most important case law in this country is based on what you would call dictum. Just see Footnote 4 of Carolene Products Company that one footnote, which didn't even deal with the issue at hand formed the basis of equal protection jurisprudence which consequently is partly why the Court was able to overturn DOMA. You make it sound like it's illegitimate what the court did or said but your narrow understanding of what the core of the opinion in NAMUDNO is, is simply wrong. The case involved a whole lot more and dealt with broad reaching issues about the basis of Amendment 14 and 15's congressional enforcement power as it relates to Sections 4 and 5 of the VRA.
Just because they only settled one issue in NAMUDNO doesn't make the rest of the opinion non-binding or worthless words on paper. It isn't as if the justices are sitting there writing for no purpose. Read the opinion it isn't somehow off base. The factual history of the case makes that clear. If you are going hold the position you believe, then you have to revert to a very restricted methodology of making case law and with that you can get rid of Class based protections for minorities, aliens, protections based on gender, LGBTQ rights, you can say hello to Lochner again and probably get right back to Dredd Scott because the whole basis for requiring non-discrimination laws is based on an economic theory founded in Wickard v Filburn.
The justices have to look at more than just the narrow issue before them as well because they need to know what the implications of their rulings are that is they have oral argument where all they do is pose hypotheticals to figure out where the legal theories of the parties will take society. To look at all that and fail to address it would be like writing a scientific paper and without addressing your critics or potential rammifications of your research, IE bad science. It's the same thing here.
The court, in oral argument has so much as said that terming things as dictum doesn't really move the ball that far forward when dealing with the issues. So I mean, really there isn't a reason to think dictum or precedent are somehow binding on the Court. They simply aren't and that's okay if you want the Constitution to expand for modern times or to deal with bad Supreme Court decisions.
Light hearted footnote: The only time this probably doesn't count is in Flood v. Kuhn where the court, with dissents and concurrences, listed the greatest baseball players of all time. Seriously. Blackmun made a list of people he thought were the best. And some justices concurred and dissented as to that list. So there's that.
Frankly, I keep saying dicta because you do not yet understand what the word means.
Literally everything Roberts said about the Commerce Clause in the ACA case's penalty discussion is dicta, for instance, because the case was actually decided on the much narrower grounds of whether the power to tax allowed the penalty component of the ACA to exist.
Consider, also, the vast array of sweeping and vague things that Kennedy has said in all of the abortion cases where he held the swing vote; it's mostly flowery dicta. If it actually held legal weight, it would be much easier for women to get abortions in a lot of states.
As I said, the Supreme Court does not actually have to follow the rules that every judge is supposed to follow, because there is no significant check if they make a very intellectually dishonest decision; the mere lack of review, though, does not mean their decisions are always defensible.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
You are wrong about the ACA because there are five votes saying that the commerce clause doesn't work for the Affordable Care Act giving that argument a majority as to that point meaning that it is in fact binding. That's happened before where the court had a fractured opinion and formed binding precedent based on a mish mash of dissents in Lynch v. Donnelly and Allegheny County regarding the establishment clause.
But look, I'm tired of arguing with you because I'm not going to change your mind nor do I want to. I don't want to get off topic with you any more than I already have. If you think you have figured the law out then good on you. You and I are just going to have to disagree and that's fine too kedinik. You're not dumb and it's fine for us to disagree with one another.
We're just going to keep going in circles and it's not on topic so why bother? I've said everything I could say and it doesn't seem to matter and that's fine, you don't have to think I'm right and I don't have to think you're right. But I have more respect for you and the other forumers to keep having a fight that isn't on topic that also isn't likely to win you over. Plus, even though I don't think I'm wrong, I am sure there are judges who see things your way and would disagree with me, and vice versa. So you know, well argued, time to move on
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I'm really interested to see how the right reacts to the DoJ's move on section 3. My major complaint with the VRA is simply that it makes inefficient democratic districts in the House of Reps which drives me nuts.
ATIRage on
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knitdanIn ur baseKillin ur guysRegistered Userregular
Pretty sure the right is going with, "hey, didn't the Supreme Court just strike down the VRA?"
And then ignoring whoever explains that, no, that's not what happened.
“I was quick when I came in here, I’m twice as quick now”
-Indiana Solo, runner of blades
Well, it was brought up 18 years early. it's not like the court just conjured it out thin air.
If Scalia were at all consistent in his own nonsense, he would not have ruled unconstitutional, he would have said it was the duty of Congress to decide (and they had as recently as 2006), not SCOTUS.
Because he presumes to not believe in legislating from the bench.
Except when it suits his political bent.
Congress had been told that the law was outdated and unconstitutional.
On what grounds?
That's not really relevant to why it was sent back. The point is that this did not appear out of nowhere. The court had previous decided that the law needed to be updated to remain constitutional. Congress failing to address that forced the court to make them address it.
You're talking about a period of like 3 years between warning and execution. That is ridiculously fast in both judicial and legislative terms. Moreover this warning of "outdated" came three years after the law was reviewed and repassed.
On it's face it's ludicrous. They didn't like the law that Congress passed and so struck it down based on nothing in the constition.
VanguardBut now the dream is over. And the insect is awake.Registered User, __BANNED USERSregular
This is a good thing happening, and I think the evidence is clearly there to get this passed. Of course, I'm sure it will not be that easy, but I look forward to the spectacle.
Granted, quite a few people didn't think the equal footing doctrine applied this way: the equal footing doctrine kind of falls apart when applied this way on two levels:
A) The equal footing doctrine only applies to newly admitted states and their powers with respect to other states, not remedial measures exacted against the states for prior wrong acts under Amendment 14 and 15.
Yeah, this is where Shelby falls apart for me.
To my understanding, state sovereign equality mainly, pre-Shelby, meant that newly admitted states entered the US with the same powers of any older state; it had already been held that this doctrine created no real barrier to applying laws unevenly between states.
When I call Shelby's majority opinion intellectually dishonest, this is what I'm talking about; they've distorted an old and essentially irrelevant doctrine while protesting to high heaven that it has always been what they have freshly molded it into.
kedinik on
I made a game! Hotline Maui. Requires mouse and keyboard.
I think the majority would agree with Schrodinger's point although I am not sure that is what Schrodinger was going for. The oral argument made it clear that some of the more minority denying jurisdictions are in places like Boston and NYC which both have a pretty history of blocking or placing barriers in the path of minorities who want to vote.
I'm sure that there are parts that were previously covered that still need to be covered for preclearance. The part that bothers me is that states had the ability to bail out of the preclearance provisions and frequently would not do so. My understanding is that very few jurisdictions, like most of northern virginia, were able to show that they have reversed their past ways.
I'm excited to see what the loss of section 4 will have on redistricting maps in 2020. It's entirely possible that southern states will become democratically more competitive because minority majority districts can now be loosened up in those states. Granted the opposite argument is that minority vote dilution is now also more likely.
[A] federal panel ruled Tuesday that the Department of Justice could intervene in a lawsuit to make its case.
In a motion filed two years after a lawsuit over Texas’ redistricting plan was initiated, the Department of Justice argues that Texas’s 2011 redistricting plans were redrawn to hurt minority voting power and had the intended impact. Because the formula that previously designated Texas as an area with a discriminatory history whose voting changes were subject to federal “pre-clearance” was invalidated by the Supreme Court in June, the DOJ can no longer use Section 5 to challenge laws that dilute minority voting, as it did when a federal court blocked Texas’ redistricting map in 2012. As a consequence, within hours of the Supreme Court ruling, Texas Attorney General Greg Abbott moved to reinstate a voter ID law and redistricting map that were previously blocked for discriminating against blacks and Latinos.
Under another section of the Voting Rights Act, Section 3, states can be brought back under the pre-clearance requirement if the court finds new evidence of intentional discrimination. Judges Orlando Luis Garcia, a Clinton nominee, and Xavier Rodriguez, a George W. Bush nominee, agreed with the Justice Department that its new Section 3 claim was timely and appropriate, because it did not become relevant until after the U.S. Supreme Court’s June decision. Their ruling hinted that they would entertain the Section 3 argument, writing, “after Shelby County, circumstances changed significantly, since §3(c) became an issue for the first time.” They noted that the Justice Department should be allowed to intervene because it has a “direct interest in the construction and application of § 3(c) that was not present until after the Shelby County ruling.”
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1) that the law treats the states unequally considering the massive amount of Congressional power the VRA exerts, thereby violating the equal footing doctrine. IE because the VRA didn't sufficiently explain why the VRA should single out some and not other states based on the formula in section 4, that the doctrine was violated.
2) That Amendment 14 and 15's grants of power was not meant to usurp state rights absolutely and that to justify burdens placed on the states there must be sufficient explanation to justify the ends of such power.
3) The VRA doesn't have sufficient justification for using the decades old formula and therefore the ends of preclearance under section 5 cannot be justified
4) That doesn't make the end unconstitutional but it does make the analysis to exercise Section 5 unjustifiable. Thus section 4, lacking congruence with the amount of power it exerts over states while failing to justify that power exercise with updated formulas means the justification for section 5 cannot stand (that justification being the coverage formula in section 4, thus section 4 is unconstitutional)
5) Congress is free to make a new formula or bail in jurisdictions on a showing of proof that preclearance should apply to the jurisdiction.
All of that is in Shelby v. Holder and they said it could be remedied with an updated formula.
Granted, quite a few people didn't think the equal footing doctrine applied this way: the equal footing doctrine kind of falls apart when applied this way on two levels:
A) The equal footing doctrine only applies to newly admitted states and their powers with respect to other states, not remedial measures exacted against the states for prior wrong acts under Amendment 14 and 15.
If the Austin case was decided on narrow statutory grounds, then what business did the court have in professing their doubts on the constitutional question? I thought it was a basic principle of American jurisprudence that courts do not go beyond the case at hand.
So the case did involve those con law questions but the court saved them for a different time by saving the VRA on different grounds.
I guess I phrased myself poorly (not a lawyer). What I was going for was something like: I thought that if the court threw out a case, on, say, standing grounds, then they categorically refused to say how they would have ruled on the merits. And I thought that something similar would apply to the Austin case as described. Something like--once you've said enough to decide the case, do not go on saying additional things that do not strictly speaking need to be said.
Yeah, that was Roberts playing the long game. Considering his background, the ONLY ethical position he should have had on the VRA was recusing himself.
1) Fix it yourself as a judge (most activist)
2) Ignore the problem unless its unconstitutional
3) Tell congress to fix it
The two issues: The constitutional question and the statutory interpretation were not opposed to each other in this case. On top of that to explain why the constitutional question could be ignored required explaining what the constitutional interpretation is. To do otherwise would have left a huge hole in his judicial opinion in NAMUDNO. Think of it like this, when writing a paper where there are multiple theories to your conclusion, you have to address all of them or else you haven't fully justified your paper. The same exists here. To explain why the constitutional question could be avoided, discussion about the perceived imperfections of the constitutional issues needed to be addressed.
Remember Roberts opinion was joined by the entire Court and both liberals and conservatives in the law had reservations about the VRA. I'm not saying that they all agreed about the solution but they certainly didn't think Roberts opinion was off the wall in either case.
At the end of the day the Supreme Court can do whatever it wants, though, which in this case included citing recent dictum as if it represented longstanding principles.
Just because they only settled one issue in NAMUDNO doesn't make the rest of the opinion non-binding or worthless words on paper. It isn't as if the justices are sitting there writing for no purpose. Read the opinion it isn't somehow off base. The factual history of the case makes that clear. If you are going hold the position you believe, then you have to revert to a very restricted methodology of making case law and with that you can get rid of Class based protections for minorities, aliens, protections based on gender, LGBTQ rights, you can say hello to Lochner again and probably get right back to Dredd Scott because the whole basis for requiring non-discrimination laws is based on an economic theory founded in Wickard v Filburn.
The justices have to look at more than just the narrow issue before them as well because they need to know what the implications of their rulings are that is they have oral argument where all they do is pose hypotheticals to figure out where the legal theories of the parties will take society. To look at all that and fail to address it would be like writing a scientific paper and without addressing your critics or potential rammifications of your research, IE bad science. It's the same thing here.
The court, in oral argument has so much as said that terming things as dictum doesn't really move the ball that far forward when dealing with the issues. So I mean, really there isn't a reason to think dictum or precedent are somehow binding on the Court. They simply aren't and that's okay if you want the Constitution to expand for modern times or to deal with bad Supreme Court decisions.
Light hearted footnote: The only time this probably doesn't count is in Flood v. Kuhn where the court, with dissents and concurrences, listed the greatest baseball players of all time. Seriously. Blackmun made a list of people he thought were the best. And some justices concurred and dissented as to that list. So there's that.
Literally everything Roberts said about the Commerce Clause in the ACA case's penalty discussion is dicta, for instance, because the case was actually decided on the much narrower grounds of whether the power to tax allowed the penalty component of the ACA to exist.
Consider, also, the vast array of sweeping and vague things that Kennedy has said in all of the abortion cases where he held the swing vote; it's mostly flowery dicta. If it actually held legal weight, it would be much easier for women to get abortions in a lot of states.
As I said, the Supreme Court does not actually have to follow the rules that every judge is supposed to follow, because there is no significant check if they make a very intellectually dishonest decision; the mere lack of review, though, does not mean their decisions are always defensible.
But look, I'm tired of arguing with you because I'm not going to change your mind nor do I want to. I don't want to get off topic with you any more than I already have. If you think you have figured the law out then good on you. You and I are just going to have to disagree and that's fine too kedinik. You're not dumb and it's fine for us to disagree with one another.
Some Edits:
I'm really interested to see how the right reacts to the DoJ's move on section 3. My major complaint with the VRA is simply that it makes inefficient democratic districts in the House of Reps which drives me nuts.
And then ignoring whoever explains that, no, that's not what happened.
-Indiana Solo, runner of blades
You're talking about a period of like 3 years between warning and execution. That is ridiculously fast in both judicial and legislative terms. Moreover this warning of "outdated" came three years after the law was reviewed and repassed.
On it's face it's ludicrous. They didn't like the law that Congress passed and so struck it down based on nothing in the constition.
*grabs popcorn, exits thread*
Yeah, this is where Shelby falls apart for me.
To my understanding, state sovereign equality mainly, pre-Shelby, meant that newly admitted states entered the US with the same powers of any older state; it had already been held that this doctrine created no real barrier to applying laws unevenly between states.
When I call Shelby's majority opinion intellectually dishonest, this is what I'm talking about; they've distorted an old and essentially irrelevant doctrine while protesting to high heaven that it has always been what they have freshly molded it into.
I'm sure that there are parts that were previously covered that still need to be covered for preclearance. The part that bothers me is that states had the ability to bail out of the preclearance provisions and frequently would not do so. My understanding is that very few jurisdictions, like most of northern virginia, were able to show that they have reversed their past ways.
I'm excited to see what the loss of section 4 will have on redistricting maps in 2020. It's entirely possible that southern states will become democratically more competitive because minority majority districts can now be loosened up in those states. Granted the opposite argument is that minority vote dilution is now also more likely.