fter back-to-back terms ending in historic rulings that riveted the nation, the Supreme Court might have been expected to return to its usual diet of routine cases that rarely engage the public.
Instead, the court’s new term, which starts Monday, will feature an extraordinary series of cases on consequential constitutional issues, including campaign contributions, abortion rights, affirmative action, public prayer and presidential power.
“This term is deeper in important cases than either of the prior two terms,” said Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University.
An unusually large number of the new cases put important precedents at risk, many in areas of the law the court has been rapidly revising since the retirement of Justice Sandra Day O’Connor. She was at the court’s ideological center, and her moderate instincts played a crucial role in shaping the court’s jurisprudence on abortion, race, religion and the role of money in politics.
Justice O’Connor was succeeded in 2006 by the more conservative Justice Samuel A. Alito Jr., and the impact of that switch is likely to be felt in new cases in all four of those areas, with the court revisiting and perhaps replacing precedents from earlier courts in all of them.
In the last term, the court grappled with the nature of equality — in college admissions, in the voting booth and at the altar. The new term will include a run of cases on the structure of the political process, including ones on the balance of power between the branches of government and the role of money in politics.
I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy. For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning. But what is that meaning?
In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.” Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.
To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South. The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended. Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers: “Do you think that racial discrimination in voting has ended, that there is none anywhere?” The answer to that question must be no. From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.
In addition, to many people, the VRA symbolizes protection of the crown jewel of rights, the right of access to the ballot box. For those who know the history, this right was born from the blood and the bodies of all those who had been given the last full measure of their devotion to secure full access for all to the ballot box – those beaten on the bridge from Selma, Alabama in 1965, the three civil rights workers lynched in the Mississippi summer of 1964, and many others. How can the Court find unconstitutional an Act that plays any role at all in ensuring political equality regarding this most sacred right? And why should the Court second-guess Congress on these issues?
The Fourteenth Amendment protects every person’s right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to “race, color, or previous condition of servitude.” The Tenth Amendment reserves all rights not expressly granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state.
The Civil Rights Act of 1965 was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change “neither has the purpose nor will have the effect” of negatively impacting any individual’s right to vote based on race or minority status. Section 5 was originally enacted for five years, but has been continually renewed since that time.
Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement. The district court upheld the constitutionality of the Sections and granted summary judgment for the Attorney General. The U.S. Court of Appeals for the District of Columbia Circuit held that Congress did not exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the issue of voting discrimination.
Question Does the renewal of Section 5 of the Voter Rights Act under the constraints of Section 4(b) exceed Congress’ authority under the Fourteenth and Fifteenth Amendments, and therefore violate the Tenth Amendment and Article Four of the Constitution?
ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We’ll hear argument first this morning in Case 12-96, Shelby County v. Holder.
Bert W Rein: Mr. Chief Justice, and may it please the Court:
Almost 4 years ago, eight Justices of the Court agreed the 2005 25-year extension of Voting Rights Act Section 5′s preclearance obligation, uniquely applicable to jurisdictions reached by Section 4(b)’s antiquated coverage formula, raised a serious constitutional question.
Those Justices recognized that the record before the Congress in 2005 made it unmistakable that the South had changed.
They questioned whether current remedial needs justified the extraordinary federalism and cost burdens of preclearance.
Justice Sonia Sotomayor: May I ask you a question?
Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.
Bert W Rein: Well, I–
Justice Sonia Sotomayor: In — in the period we’re talking about, it has many more discriminating — 240 discriminatory voting laws that were blocked by Section 5 objections.
There were numerous remedied by Section 2 litigation.
The Neo-Confederate Supreme Court Gearing Up to Restore White Rule Over America, Alternet:
If white rule in the United States is to be restored and sustained, then an important first step will be the decision of the five Neo-Confederate justices on the U.S. Supreme Court to gut the Voting Rights Act, a move that many court analysts now consider likely.
The Court’s striking down Section Five of the Voting Rights Act will mean that jurisdictions with a history of racial discrimination in voting – mostly in the Old Confederacy – will be free to impose new obstacles to voting by African-Americans, Hispanics and other minorities without first having to submit the changes to a federal court…..
The Supreme Court’s apparent intention to gut the Voting Rights Act also could be viewed in the continuum of its five-to-four ruling in the Citizens United case of 2010 in which the right-wing justices freed up rich Americans to spend unlimited amounts to influence political campaigns. In other words, the Court’s majority seems intent on tilting the political playing field in favor of white plutocrats.
But the Court’s Neo-Confederate rationale was underscored mostly openly by Justice Scalia and his sneering remark about minority voting rights being a “racial entitlement” and by Justice Kennedy’s insistence that Alabama has the “independent sovereign” right to set its own voting rules without federal oversight.
The U.S. Supreme Court will take up California’s ban on same-sex marriage, a case that could give the justices the chance to rule on whether gays have the same constitutional right to marry as heterosexuals.
The justices said today they will review a federal appeals court ruling that struck down the state’s gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.
The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people in a case from the U.S. Court of Appeals for the Second Circuit. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.
The cases are likely to be argued in March, with decisions expected by late June.
The Supreme Court begins a new term Monday with the most important civil rights agenda in years on the horizon and amid intensified scrutiny of the relationship between Chief Justice John G. Roberts Jr. and his fellow conservatives.
The justices will consider the continued viability of affirmative action in college admissions when it hears a challenge next week to the University of Texas’s race-conscious selection process.
And there are several challenges awaiting the court’s action on the most controversial part of the Voting Rights Act — the Civil Rights-era requirement that some states with a history of racial discrimination receive federal approval before enacting voting or election-law changes.
The court seems all but certain to confront the issue of same-sex marriage by considering suits against the 1996 federal Defense of Marriage Act. The law’s provision denying federal recognition of same-sex marriages performed in states where they are legal has been deemed unconstitutional both by the Obama administration and lower courts that have considered it.
In addition, the court will be asked to review a decision that overturned California’s Proposition 8, in which voters amended the state constitution to define marriage as between a man and a woman.
Happy Monday, folks. I’ve been off the grid for a few days for a desperately needed re-charging. The news all around is dire these days and information overload can be a bit much. A piece will be forthcoming on how acts of kindness to one’s self can be revolutionary and necessary for change.
Google’s harvesting of e-mails, passwords and other sensitive personal information from unsuspecting households in the United States and around the world was neither a mistake nor the work of a rogue engineer, as the company long maintained, but a program that supervisors knew about, according to new details from the full text of a regulatory report.
The report, prepared by the Federal Communications Commission after a 17-month investigation of Google’s Street View project, was released, heavily redacted, two weeks ago. Although it found that Google had not violated any laws, the agency said Google had obstructed the inquiry and fined the company $25,000.
On Saturday, Google released a version of the report with only employees’ names redacted.
The full version draws a portrait of a company where an engineer can easily embark on a project to gather personal e-mails and Web searches of potentially hundreds of millions of people as part of his or her unscheduled work time, and where privacy concerns are shrugged off.
The so-called payload data was secretly collected between 2007 and 2010 as part of Street View, a project to photograph streetscapes over much of the civilized world. When the program was being designed, the report says, it included the following “to do” item: “Discuss privacy considerations with Product Counsel.”
In 1997, Microsoft et al. lobbied to reduce Washington State’s Royalty Tax from 1.5% to .5%, a threefold reduction. This wasn’t low enough. The company decided to open a small Reno, Nevada office to dodge the tax completely.
Between 1997 – 2011, the company used its Nevada office to avoid $1.51 billion in Washington state taxes, interest and penalties. If you include impacts from the company’s lobbying and calculate its savings at the original 1.5% rate, it’s saved $4.37 billion.
Since 2008, Washington State has cut $4 billion from K-12 and Higher Education. We rank 31st in K-12 spending. 18% of University of Washington freshman are now foreigners (because they pay more) up from 2% six years ago. We rank 47th nationally in 18-24 yo college enrollment and 48th in K-12 class size.
Lindy West’s piece at Jezebel this week, “A Complete Guide To Hipster Racism,” has been blowing up my Facebook wall (and probably yours too) for good reason. As justice-minded folks have critiqued HBO’s ‘Girls’ for its lily-white representation of New York City, the pushback to the pushback has gotten ugly fast — whether it’s show story editor Lesley Arfin making jokes about Precious, or Vice founder (and old-school hipster racist) Gavin McInnes knowingly throwing the word ‘lynching’ around. At the core of every statement defending the whiteness of ‘Girls,’ and the ‘ironically’ racist jokes that accompany it, is the argument that only bad people are susceptible to racism, so therefore it’s okay for us good people to pretend to be racist, for comedy’s sake. Anyone who doesn’t like it is the real racist. There’s a bunch wrong with this argument, both in terms of logic and basic decency, and West does an excellent job of debunking it piece by piece.
Some observers claimed that SB 1070 would increase racial profiling of Latinos. The key question was how police would decide whether there was, as Section 2(B) provides, a “reasonable suspicion … that the person is an alien and is unlawfully present in the United States.” The fear is that “foreign-looking” people, especially Latinos, will bear the brunt of the mandatory immigration checks. Concerns with racial profiling contributed to the considerable public attention received by SB 1070 and Arizona v. United States.
As discussed above, the oral arguments focused on federal preemption law, not racial profiling. Counsel for the US government emphatically denied that racial profiling was at issue in the case. Counsel for the state of Arizona, as well as the justices, eagerly accepted that denial. The justices therefore did not ask questions about whether Section 2(B) of SB 1070 might result in the racial profiling of Latinos.
Unlike some of the other plaintiffs in related cases challenging the Arizona law, the US government had not made any claims that SB 1070 violates the Equal Protection Clause of the Fourteenth Amendment because it was adopted with some kind of invidious discriminatory intent. Claims of discrimination will likely have to wait another day, with the issues possibly addressed in the other cases challenging SB 1070 or in a new challenge based on the application of Section 2(B) by police.
It should be readily apparent that there is a serious disconnect between the public debate over Arizona’s SB 1070, as well as similar state immigration enforcement laws, and the legal arguments in the Court.
A lawyer has won her bid for a new student loan repayment hearing after a state judge determined that her initial proceeding was rife with errors made by an administrative law judge.
Manhattan Supreme Court Justice Alice Schlesinger (See Profile) found that the ALJ appeared to lose control of the 2009 hearing and made the “shocking” pronouncement that the attorney, Marisa Rieue, owed $108,376, including principal and interest, in unpaid loans in the absence of concrete evidence to support that conclusion.
“A review of the hearing transcript reveals that it would be a waste of judicial resources and improper to transfer this case to the Appellate Division based on substantial evidence because the record is barely comprehensible and defective in countless ways,” Schlesinger wrote in Rieue v. New York State Higher Educ. Servs. Corp., 107745/09.
She added, “While the rules of evidence are not strictly applied in administrative proceedings, the hearing must be conducted in an orderly fashion so that it is fundamentally fair, and all exhibits offered into evidence must be appropriately authenticated and explained by a proper party, with evidentiary foundations established where appropriate.”
Rieue, who once worked in the litigation bureau of the state Department of Law, has an unpublished phone number and could not be reached for comment.