Why Justices Scalia, Alito, and Thomas Will Be Wearing Burqas Over Their Hijabs Going Forward

As a sign of their judicial modesty, if reports in the aftermath of oral argument in the latest public prayer case are accurate.  Chief Justice Roberts is said to be dismayed, worried sick that they will be impeached by irate Tea Partying Republicans in the House of Representatives.  But Scalia let Roberts know he oughta grow a thicker skin and get over it.  “You call this coercion?” yelled Scalia.  “You can’t handle coercion, John.  You let Obamacare survive, but no way are you gonna stand in the way of mandatory prayer for anybody who wants a zoning variance or a septic tank permit.  We could care less what James Madison thought about it.  And by the way, I don’t know about your friends, but my Tea Party buddies are all about Sharia law.”

Justice Scalia is also said to have persuaded two of his hitherto Roman Catholic brethren that it was high time to abandon that squishy enterprise for the true faith.  Alito suggested Eastern Orthodoxy, but Scalia told him “not good enough.”  So Wahhabists r Them, that is if the NYC print edition of The Onion is to be believed.  Say what?–there is no print edition any more?

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Justice Ginsburg To Officiate At Gay Wedding Of John Roberts

Would I make that up? No way, it is a true story–just it is not the John Roberts who happens to sit on the Supreme Court.

End Of Pranzo Di Ferragosto C’est Tellement Dommage Y’All

To mark the end of this year’s Mid-August meals, here is a news roundup:

Justice Elena Kagan said yesterday in Providence that the Supreme Court justices, rather than emailing each other, write memos, which are printed on ivory paper and then carried by chambers aides to their recipients. She remarked that “the justices are not necessarily the most technologically sophisticated people…the court hasn’t really ‘gotten to’ email.” She acknowledged, as Chief Justice Roberts has, that the court is “going to have to be doing a lot of thinking” about privacy, technology, and surveillance. One hopes that their clerisy will judge privacy issues with better sucess than the Roman Catholic clergy has handled sexual ethics. Lack of (open) practice does not usually make perfect.

Justice Scalia said in Bozeman that “it’s not up to the courts to invent new minorities that get special protections.” He meant “don’t tread on my right as a member of an ethnic group formerly despised as anarchists but now accepted as more or less white folk to tread all over other folks who disgust me and don’t tread on my prerogative to say I am not a bigot if I redefine equal protection as special protection.”

The Guardian’s editor, Alan Rusbridger, disclosed that the newspaper was compelled to destroy hard drives with some of the classified government documents Edward Snowden gave to their reporters. Rusbridger noted that there are other copies of the documents outside London, so he “was happy to destroy a copy in London.” The Guardian, and the Daily Mail (which in the fullness of time may raise its gaze above celebrity rehab) have U.S. websites, correspondents, and offices, so the barbaric lack of First Amendment protections in Britain is so far not a crippling constraint for them.

White House deputy spokesman Josh (no kidding) Earnest said Tuesday “it’s very difficult to imagine a scenario in which (it) would be appropriate” to just tear up the First and Fourth, among other Amendments, and smash a newspaper’s computers. Why would anyone be concerned that that position might “evolve”?

Very Brief Therapy in Quiet Rooms

No, I am not referring to the mayor of San Diego, who laughably proposes to efface his years of disgraceful behavior with two weeks of therapy. Nor Anthony Weiner, who has probably moved forward beyond brief therapy and is not easy to associate with quiet rooms.

Instead I have in mind the unusually frank public responses this week by former Justice John Paul Stevens and current Justice Ruth Bader Ginsburg (AKA Notorious R.B.G., as I explained in an earlier post) to the Shelby County v. Holder majority opinion by John Roberts that invalidated section 4 and may have effectively gutted section 5 of the Voting Rights Act. The message I take from both Ginsburg’s AP interview (and her dissent last month) and Stevens’ New York Review of Books article on Gary May’s Bending Toward Justice is that Roberts is judging in haste, asserting power that does not belong to him under the Fourteenth and Fifteenth Amendments; and more fundamentally that Roberts is misreading, misjudging, and foreshortening the vexed and troubled history that made and makes the VRA so needful. In short he has no patience for more than a brief therapy of less than 50 years, for a problem that has existed in more or less brutal forms for nearly 400 years here.

Reading a series of memos John Roberts wrote as a Justice Department employee in 1981 and 1982 as Congress was in the process of reauthorizing the VRA shows that he was impatient even then to restrict the uses of what Justice Ginsburg memorably called the VRA’s “umbrella.” Section 2 of the VRA, according to him, was good enough (he does not explicitly say “for the colored people”). An “effects test” for voting discrimination is “unacceptable,” as it would be “fairly easy to demonstrate that such practices (as at-large voting) have the effect of diluting black voting strength”–and we Republicans cannot accept that practices favorable to us should be deemed illegal, is the message. According to Roberts’ memo to the Attorney General on December 22, 1981, the Fifteenth Amendment “safeguards the right to vote only against purposeful or intentional discrimination on account of race or color.” The actual Fifteenth Amendment says no such thing: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.” That’s it, from beginning to end.

The young Roberts was insistent that “something must be done to educate Senators on the seriousness of this problem” (the horrors of adding an effects test to the good-enough-for-black-folks section 2, given that section 5, already in Roberts’ sights, had such a test). They need either a written warning along lines suggested by Roberts, or else a “thorough campaign of meetings (should be) undertaken.” One can imagine John Roberts in a quiet room with Republican Senators giving them brief therapy on their own political future–by saying that the therapy provided by the Voting Rights Act for just seventeen years, at that point, had gone far enough.

Has John Roberts succeeded in drawing the veil over the second Reconstruction? Stick around and see, as lawsuits and countersuits begin in Texas, and likely several other states.

False Equivalence on Equality

Some commentators have followed a familiar path of least resistance in interpreting the major Supreme Court rulings of yesterday and today. David Leonhardt of the NYT, for example, achieves superficial false-equivalence-correctness by tweeting: “Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.” Leave aside the happiness I imagine plenty of Republicans (Ted Olson, for starters) feel today. The Court has the power of judicial review, but ought to use it wisely, to resolve actual cases and controversies on the basis of upholding the Constitution, especially its guarantee of equal protection of the laws regardless of majority opinion. The Voting Rights Act has been a powerful, landmark law to redress very real grievances and overcome horrible centuries-old injustices. It is obtuse and childish to equate it with the so-called Defense of Marriage Act, which had no such noble purpose in 1996–you can watch John Lewis’s anti-DOMA speech from 1996 on YouTube demolishing it on civil rights grounds–and looks utterly ridiculous now to most young Americans. Perhaps the Voting Rights Act could use tweaking and updating, but Chief Justice Roberts was way out of his depth in dismissing the legislative renewal of 2006 as senseless. And no one paying attention could equate Justice Ginsburg’s pointed, forceful yet civil dissent with Justice Scalia’s ugly and abusive trolling.

There may well be equivalence among politicians, bureaucrats, and, yes, all of us in that we seek either reelection or reconfirmation of our existing opinions. The gay marriage decisions today will, as time goes on, appeal to a wide majority of Americans because they affirm core parts of our self-image and self-understanding: Justice Kennedy affirmed the “equal dignity of same-sex marriages,” though without, yet, invalidating the indignity nationwide. To use a Civil War term, he was not ready yet to make “freedom national.” But the rapid momentum toward legal, civil equal treatment is clear, and the main lines of the decision are relatively clear and clean. Not so with the impatient, tortured, Panglossian lameness of Justice Roberts’ majority ruling gutting the Voting Rights Act. Benjamin Franklin, archetypal American for many, termed his youthful sins mere “errata.” We might like to take up Justice Roberts’ invitation to reduce our historical stains to errata. Our real history, though, contains some awful messes. If we pretend otherwise, do we really make it easier to clean up and move beyond the messes?

The reflexive pox on both your houses mindset is an easy default position–but in this case very hard to defend with detailed and informed historical or moral arguments.

Justice Roberts Guilty of Disorderly Conduct

The first draft, so to speak, of the opinion that “immobilized” (footnote 1 of Justice Ginsburg‘s dissent) section 5 of the Voting Rights Act came from Edward Blum of the so-called Project for Fair Representation, who celebrated the “return of constitutional order” today. Justice Roberts took his cue from Blum, stressing over and over the “equal sovereignty” of the states and the extraordinary deviance from that supposed Constitutional norm required by the VRA. Roberts did not hide his contempt for the 2006 reauthorization for an utterly unacceptable 25 more years–when it had so clearly been overdue for destruction by Roberts’ sophomore or junior year in college circa 1974. No matter that those reauthorizers included the President who nominated him, George W. Bush, as well as every single Senator who voted to confirm him (or not to confirm him–the VRA passed 98-0). Gutless fools, every one of them! The 2006 extension, wrote Roberts today, was based “on 40-year old facts having no logical relation to the present day.” Never mind the thousands of pages of testimony and documentation Congress considered, or Shelby County’s actual history of discrimination, which made it not only ineligible for the time being to bail out of the preclearance requirement but should have made it ineligible to bring a “facial challenge” to the VRA at all. Not to mention the numerous recent examples of clear racial discrimination Ginsburg cites against the majority’s willful amnesia. In Roberts’ remarkably bland and potted history of voting in the United States, he acknowledges (quoting from an earlier Court opinion) that the first century of “Congressional enforcement (of the 15th Amendment) can only be regarded as a failure,” but glosses over the nitty-gritty of racial subjugation and terrorism to hurry on to his main theme: the time for Second Reconstruction is up, now we move on the glorious new constitutional order, in which Texas and Mississippi and other states have already–yes, today–moved to do whatever the hell they feel like doing. An opinion, in sum, that is legally disorderly; and morally empty and blind.

Justice Ginsburg reads her Constitution and her history differently. Roberts picked at her arguments repeatedly, perhaps rattled at the prospect that her arguments might find 5 or more votes while he still sits on the Court, but he barely began to come to terms with the implications of her dissent. Ginsburg proclaimed doom and judgment on today’s majority: “the sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective” (36). The underlying reason for that failure, I would say, is the majority’s inappropriate sense of time scale. Their fantasy of a lost constitutional order restored puts some judicial issues in a more helpful perspective some of the time, but the United States Constitution, with us since 1787 or so, has provided a just, orderly framework for, say, blacks in Alabama for what percentage of the 226 years so far? Whose inconvenience and unaccommodation has really been more disorderly over the last 226 years? We should go back at least another 170 years though, should we not? Are you starting to feel like a man in unseemly and disorderly haste, Mr. Chief Justice?

Unconfirmed Report: Paula Deen Hired to Clerk for Chief Justice Roberts

This is an unconfirmed report. Paula Deen, after listening from a VIP seat in the Supreme Court to Chief Justice Roberts read his opinion today in the Shelby case, applied and was immediately accepted for a job clerking for the Chief Justice next term. It was and was not so that she also renounced her earlier apologies and rebooked plantation style wedding plans for her brother.
Hat tip to tomorrow’s issue of the Onion.

The Ripe, the Moot, and the Ugly: Least Dangerous Branch Week(s) Coming Up

In Federalist Paper 78 Alexander Hamilton gave reasons why the judiciary would be the “least dangerous (branch of government to) the political rights (prescribed by) the Constitution”: the executive “dispenses the honors” and “holds the sword of the community”; the legislature “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary in the end has only the power of judgment, and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But by the 1830s de Tocqueville would write that “armed with the power of declaring laws unconstitutional, the American magistrate perpetually interferes in political affairs. . . . Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (book I, chapter 16). Alexander Bickel, in his landmark book The Least Dangerous Branch, written in the aftermath of the 1954 Brown v. Board of Education school desegregation decision, defended judicial review, used judiciously! Both Samuel Alito and John Roberts have pointed to Bickel as a formative influence. But Bickel died the year Richard Nixon resigned, so he cannot tell us whether those justices are coping with the “countermajoritarian difficulty” and practicing the “passive virtues” in a Bickel-worthy statesmanlike way (could the three women be more Bickelian?).

Will this year’s most deeply-contested decisions be viewed as judicious in the future? Linda Greenhouse, who covered the Court for decades, is apprehensive. Her recent Opinionator column in the NYT called out the conservative faction for being just that, a faction in a hurry (she does not mention Bickel’s theme of passive virtues–see the August 2012 Scotusblog online symposium for that theme and many others, with much historical context on mootness and ripeness in the Warren Court era). Her particular warrants, so to speak, are that a 2003 affirmative action ruling could and should have been left to settle and rest for 25 years, and that the conservatives are grabbing too quickly for “the next potential vehicle for shutting down affirmative action.” Why? Out of fear that their five-four majority could slip away any day now. Greenhouse does not address the impending voting rights decision, but there is plenty of cause for concern that the near-unanimous 2006 Congressional renewal–until 2031–of the Voting Rights Act will be subjected to ill-advised countermajoritarian scrutiny.
The same-sex marriage issue is unlikely, I think, to get a clear resolution this year, though the justices ought to realize that the issue is somewhere between moot and absurd for most youthful Americans.

Is the Court going to issue unripe and/or soon-to-be-moot rulings? That may be the ugly reality, though I hope for surprises.