Open Thread: SCOTUS Christmas 2013

[badlydrawnjeff.livejournal.com]

In the next two days, we're likely going to get two rulings of significance to the United States:

* Cases regarding California's Proposition 8, a citizen-led ballot initiative which banned gay marriage in the state, and a case regarding the Constitutionality of the Defense of Marriage Act, passed through Congress and signed by President Clinton in 1996, which allows states the ability to choose to not recognize marriages in other states and codifies marriage as between a man and a woman in regards to federal benefits on the national level. The Proposition 8 case is Hollingsworth v. Perry and the DOMA case is United States v. Windsor.

* A case regarding the "preclearance" portion of the Voting Rights Act of 1965, which requires certain localities to submit changes to voting procedure to the Department of Justice for clearance before implementation. A basic overview is here, via the New York Times.

The Supreme Court ruled on an affirmative action case yesterday, and sent the case back to Texas for further review while showing some further hostility regarding racial preferences of any sort, a hallmark of the Roberts Court. Whether that gives any insight into how the Court will rule regarding the VRA, I don't know, but oral arguments at least suggested that there are five votes to overturn section 5, with Breyer being an unlikely but possible 6th vote.

Regarding the gay marriage cases, there's a decent chance that few, if anyone, will go home completely happy on the matter. Court watchers that I follow on both ends of the spectrum have predicted that DOMA is overturned and Proposition 8 is dismissed on grounds of standing (given the strange path of those trying to push the case through as well as defend it), although a good argument can be made on the basic merits that DOMA should stay in place and Proposition 8 is upheld, but I think we might end up seeing DOMA overturned but Prop 8 upheld if the standing issue is not in the way. Much of the debate on the issue has been less about the Constitution and more about the Court being on "the right side of history" and of policy discussions - discussions that will likely be moot within the end of the decade anyway.

Anyhow, open thread. Thoughts on these cases, other cases, and so on welcome.

Comments

[badlydrawnjeff.livejournal.com]

Why should that matter if the obvious will violates the constitution? Not trying to be flip, but I don't see why that question is relevant.

[underlankers.livejournal.com]

Wait, why does the Voting Rights Act violate the Constitution? When did the 15th and 19th Amendments get nullified?

[badlydrawnjeff.livejournal.com]

Sections of it might depending on what its actual relationship to Constitutional voting rules are.

[underlankers.livejournal.com]

What do you define as Constitutional voting rules? Are you saying that the Jim Crow Laws were legal?

[malasadas.livejournal.com]

Because the court did not rule the VRA unconstitutional in its totality. It declared the system of determining who was under tighter federal scrutiny outdated and invited Congress to revisit it -- when they had 7 years prior and reauthorizedit by 90% margins.

Seems the very definition of legislating from the bench.

[brother-dour.livejournal.com]

Could SCOTUS mandate to revisit the law be more in reference to the fact that the law had been on the books since 1965? Maybe they were saying, "Look. The law was passed in 1965, and even though you renewed it in 2006, it was outdated in 2006, too. So...yeah. Think about that law some more." ?

[malasadas.livejournal.com]

That still comes off as legislating. Congress asked that question in 2006 and compiled 15,000 pages of documents in evidence for renewal. SCOTUS said section 5 is Constitutional, meaning it IS okay to require some jurisdictions to face higher levels of scrutiny than others. But then they said section 4 is unconstitutional essentially because it is old.

[telemann.livejournal.com]

Texas sure didn't waste any time in its quest for minority voter repression. (http://news.yahoo.com/quick-texas-moves-forward-voter-id-law-supreme-125924919.html)

[major-dallas.livejournal.com]

uhmm, how does requiring an ID = minority repression?

[telemann.livejournal.com]

[underlankers.livejournal.com]

How did the Grandfather clause disproportionately target minorities? How did poll taxes and literacy tests do this? The answer in all cases is that the law means little if it's selectively enforced.

[geezer-also.livejournal.com]

So if everyone is required to show an id to vote it's ok then.

[underlankers.livejournal.com]

Presuming the 100 Percent Americaners go along with it, yes. And that it was strictly enforced. But if the Hundred Percent Americaners decide that enforcing the law is tyranny, well......

[badlydrawnjeff.livejournal.com]

Haven't read the ruling yet, so I can't speak to whether it was judicial activism (although if Roberts got to write the opinion, I wouldn't be shocked).

The question is more of a general one - you're talking an extreme form of legislative deference, as if a 100-0 vote that banned flag burning would somehow be okay simply because everyone in the Senate agreed to it.

[malasadas.livejournal.com]

I disagree. This is more like the Court upholding a flag burning law by saying you surely can ban flag burning, but the part of your law specifically banning burning 48 star flags is too out of date.

Section 5 is upheld. They did not decide that it was against the Constitution to hold certin states to higher scrutiny based on past offenses. What they did was say the formula was out of date even though Congress examined 15,000 pages of evidence to uphold it only 7 years ago. That's legislating.

I'd have disagreed with it if they had tossed out pre-clearance itself as against the Constitution but I'd respect the reasoning more. As it is, they more REWROTE the law than ruled on an actual Cnstitutional matter.

[badlydrawnjeff.livejournal.com]

I disagree. This is more like the Court upholding a flag burning law by saying you surely can ban flag burning, but the part of your law specifically banning burning 48 star flags is too out of date.

So are we saying that localities have no legal recourse in poor legislation that's otherwise legally enacted? Not every case that comes before the Supreme Court is necessarily Constitutionally-ambiguous in nature, no?

Section 5 is upheld. They did not decide that it was against the Constitution to hold certin states to higher scrutiny based on past offenses. What they did was say the formula was out of date even though Congress examined 15,000 pages of evidence to uphold it only 7 years ago. That's legislating.

If so, yeah, on the surface I'd probably agree.

[devil-ad-vocate.livejournal.com]

The Voting Rights Act itself was not effected, i.e., its statement of purpose prohibiting discrimination in voting rights on the basis of race or color, nor was the 'pre-clearance' provisions of Section 5 affected, but the formula of jurisdictional application has been removed, essentially leaving the Act as a statement of intent but toothless, unless (unlikely) Congress passes new legislation establishing new criteria for enforcement application, based on empirical evidence of new methods of violation and in what States.