***Official US Supreme Court Thread*** (1 Viewer)

[badmojo1006]

I didn't see a thread for Supreme Court and other court decisions. May not have many topics, but it is an interest of mine.

The US Supreme Court to re-visit the Voting Rights Act after looking at it in 2009. Good chance it will be overturned because it is being revisited so quickly

 

[Christo]

January 2013 Calendar:

Monday, January 7:

Descamps v. U.S. Whether a federal court can enhance a federal sentence based on a state conviction for burglary if the state statute is missing an element of the generic crime.

Standard Fire Insurance v. Knowles Can a plaintiff thwart class action removal by stipulating that he seeks less than $5 million if the defendant establishes that the actual amount in controversy exceeds $5 million?

Tuesday, January 8:

Gabelli v. SEC Defining the start of the five-year time limit for the SEC to seek penalties for securities fraud.

Delia v. EMA Resolving a conflict between the Fourth Circuit and the North Carolina Supreme Court regarding whether N.C. Gen. Stat. § 108A-57 is preempted by the Medicaid Act's anti-lien provision as it was construed in Arkansas Department of Health & Human Services v. Ahlborn.

Wednesday, January 9:

Missouri v. McNeely Can the cops take a blood sample from a drunken driving suspect without a warrant or the suspect's permission?

Maracich v. Spears Whether lawyers who obtain, disclose, or use driver's license information solely to find clients to represent in an incipient lawsuit -- as opposed to evidence for use in existing or potential litigation -- are protected under the under the litigation exception of the Driver's Privacy Protection Act.

Monday, January 14:

Alleyne v. U.S. Re-examining the Court's decision in Harris v. United States, that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury.

Boyer v. Louisiana Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?

Tuesday, January 15:

Levin v. U.S. Whether suit may be brought against the United States for battery committed to a civilian by military medical personnel acting within the scope of employment.

Koontz v. St. Johns River Water Management District Does an agency commit a taking when it refuses to issue a permit?

Wednesday, January 16:

City of Arlington v. FCC and Cable, Telecommunications and Technology v. FCC (consolidated) Whether a court should apply Chevron U.S.A. Inc. v. NRDC, Inc., to review an agency's determination of its own jurisdiction.

Gunn v. Minton Deciding whether federal courts have exclusive "arising under" jurisdiction when the sole substantive issue is the application of a patent law doctrine which is an essential element of a legal malpractice claim.

 

[the moops]

Most of those cases seem boring.

 

[Christo]

December 2012 Calendar:

Monday, Nov. 26:

FTC v. Phoebe Putney Health System -- Examining how federal antitrust laws apply to the state action doctrine.

Vance v. Ball State University -- Addressing whether the Faragher and Ellerth "supervisor" liability rule applies to harassment by those whom an employer vests with authority to direct and oversee their victim's daily work.

Tuesday, Nov. 27:

U.S. Airways, Inc. v. McCutchen -- Whether ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan's terms give it an absolute right to full reimbursement.

Wednesday, Nov. 28:

Henderson v. United States -- When the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, should an appellate court reviewing for "plain error" apply Johnson's time-of-appeal standard, or should it apply the Ninth Circuit's time-of-trial standard?

Monday, Dec. 3:

Genesis HealthCare Corp. v. Symczyk -- Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.

Decker v. Northwest Environmental Defense Center and Georgia-Pacific West v. Northwest Environmental Defense Center (consolidated) -- May a citizen bypass judicial review of an National Pollutant Discharge Elimination System permitting rule and instead challenge the validity of the rule in a citizen suit to enforce the Clean Water Act? Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under CWA and EPS rules, even though EPA has determined otherwise?

Tuesday, Dec. 4:

Sebelius v. Auburn Regional Medical Center -- Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary is subject to equitable tolling.

Wednesday, Dec. 5:

Chafin v. Chafin -- Does an appeal of a district court's ruling on a Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction become moot after the child at issue returns to his or her country of habitual residence or do U.S. courts retain jurisdiction.

 

[Christo]

Most of those cases seem boring.

Most SCOTUS cases are boring and technical.

 

[bentley]

Most of those cases seem boring.

Most SCOTUS cases are boring and technical.

Yep.Supreme Court decisions suck. Let's spice this up a little. Could any Supreme Court justice in history take Byron White?

 

[jon_mx]

Maybe a Who's the hottest. I am going with Sandra Day O'Conner.

Number 2 is where it gets tough. May have to go Scalia.

 

[Flying Spaghetti Monster]

I didn't see a thread for Supreme Court and other court decisions. May not have many topics, but it is an interest of mine.

The US Supreme Court to re-visit the Voting Rights Act after looking at it in 2009. Good chance it will be overturned because it is being revisited so quickly

A cursory review of recent Republican shenanigans with voting rules should put the notion that the VRA is obsolete entirely to bed. With voting growing more racially polarized, the temptations to alter voting rules to disenfranchise particular constituencies is obvious. Indeed, the Department of Justice successfully challenged Texas' redistricting map because it diluted the voting power of Latinos. If the court strikes Section 5 down, one of the most effective and important powers the federal government has for ensuring that the right to vote is not abridged on the basis of race will be destroyed.

 

[fatguyinalittlecoat]

Another campaign finance case -- is it unconstitutional to limit the total amount that an individual can contribute to all candidates and political committees?

 

[Zow]

While understandably boring-sounding that Missouri vs. McNeely is a pretty big case for DUI law. If affirmed it'd pretty much cut out any hope to a defendant for fighting the due process of a draw. As it stands now, at least in AZ, if a defendant refuses (and eats the immediate longer suspension for doing so) and/or requests an attorney the cops have to jump through some moderate hoops to get the blood and can screw up. If this case is granted it'd be a big advantage to the state.

 

[Maurile Tremblay]

Another campaign finance case -- is it unconstitutional to limit the total amount that an individual can contribute to all candidates and political committees?

That seems like an easy one. My right to spend money publishing my views about politicians is protected by the First Amendment (see Citizens United). But my right to give money to politicians so that they'll support my cause? I don't see how that's any more protected than my right to give money to prostitutes so that they'll sleep with me. The First Amendment protects the right to publish speech, not the right to pay people for their affection.

 

[fatguyinalittlecoat]

Another campaign finance case -- is it unconstitutional to limit the total amount that an individual can contribute to all candidates and political committees?

That seems like an easy one. My right to spend money publishing my views about politicians is protected by the First Amendment (see Citizens United). But my right to give money to politicians so that they'll support my cause? I don't see how that's any more protected than my right to give money to prostitutes so that they'll sleep with me. The First Amendment protects the right to publish speech, not the right to pay people for their affection.

Well, the Supreme Court has said that making contributions is a First Amendment right that can only be limited for specific reasons like corruption or the appearance of corruption. What's the specific reason to prevent somebody from giving $1000 to every federal candidate's campaign?

 

[Maurile Tremblay]

Another campaign finance case -- is it unconstitutional to limit the total amount that an individual can contribute to all candidates and political committees?

That seems like an easy one. My right to spend money publishing my views about politicians is protected by the First Amendment (see Citizens United). But my right to give money to politicians so that they'll support my cause? I don't see how that's any more protected than my right to give money to prostitutes so that they'll sleep with me. The First Amendment protects the right to publish speech, not the right to pay people for their affection.

Well, the Supreme Court has said that making contributions is a First Amendment right that can only be limited for specific reasons like corruption or the appearance of corruption. What's the specific reason to prevent somebody from giving $1000 to every federal candidate's campaign?

Oh, I didn't realize there was a single overall limit for a donor in addition to limits for each specific donor-candidate pairing.But even then ... the two main reasons for limits on campaign contributions seem to be (a) to equalize how much is spent by competing candidates so that a candidate can't buy an election by vastly outspending his opponent, and (b) to prevent corruption. As I understand the current law, the first reason is prohibited; the second is accepted.

Preventing someone from giving $1,000 to every federal candidate does nothing to equalize spending, so the rationale is likely to prevent the appearance of corruption. And that makes sense. Is it more effective to bribe one candidate by giving him $535,000, or to bribe 535 candidates by giving them $1,000 each? Quite possibly the latter...

 

[Christo]

Another campaign finance case -- is it unconstitutional to limit the total amount that an individual can contribute to all candidates and political committees?

That seems like an easy one. My right to spend money publishing my views about politicians is protected by the First Amendment (see Citizens United). But my right to give money to politicians so that they'll support my cause? I don't see how that's any more protected than my right to give money to prostitutes so that they'll sleep with me. The First Amendment protects the right to publish speech, not the right to pay people for their affection.

Then we need to amend it right away.

 

[fatguyinalittlecoat]

Preventing someone from giving $1,000 to every federal candidate does nothing to equalize spending, so the rationale is likely to prevent the appearance of corruption. And that makes sense. Is it more effective to bribe one candidate by giving him $535,000, or to bribe 535 candidates by giving them $1,000 each? Quite possibly the latter...

At least four of the justices must think this case is close enough to warrant oral argument. The Supreme Court summarily affirmed the last few federal campaign finance cases without oral argument. They're apparently taking this one a little more seriously.

 

[Maurile Tremblay]

Radley Balko and Jacob Sullum are rather unimpressed with Justice Kagan's opinion for the unanimous court handed down yesterday.

 

[badmojo1006]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’

Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

 

[Jewell]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’ Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

 

[Ramsay Hunt Experience]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’ Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

Those two questions have nothing to do with whether the 15th Amendment authorizes the Voting Rights Act, or whether the 14th Amendment renders Section 5 of the Act unconstitutional. Seems odd to have even a "faint-hearted" textualist and Justice Balls and Strikes argue as if they do.

 

[Jewell]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’

Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?

Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

Those two questions have nothing to do with whether the 15th Amendment authorizes the Voting Rights Act, or whether the 14th Amendment renders Section 5 of the Act unconstitutional. Seems odd to have even a "faint-hearted" textualist and Justice Balls and Strikes argue as if they do.

Those questions have to do with whether Congress is properly exercising the power vested to it via Section 5, and that's why the Justices are asking those specific questions. They're certainly not doing it for ####s-and-giggles.The 15th Amendment guarantees the right to vote and grants Congress the power to enforce that right with appropriate legislation. The question then becomes whether the Section 5 limitations are appropriate in 2013. In 1965, the preclearance requirements were authorized for just five years. But Congress has extended them four times, most recently in 2006 for 25 years. The questions above from today's argument cut to the rationality of Section 5 today. Regarding appropriateness and rationality Justice Thomas has previously stated, "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today."

In the end, despite the media suggesting that Section 5 will get struck down, I think it will be upheld.

 

[Novice2]

Chief Justice John Roberts, a vocal skeptic of the use of race in all areas of public life, cited a variety of statistics that showed starker racial disparities in some aspects of voting in Massachusetts than in Mississippi. Then he asked the government's top Supreme Court lawyer whether the Obama administration thinks "the citizens in the South are more racist than citizens in the North?" The answer from Solicitor General Donald Verrilli was no.......

..... they are equally racist but the racists in the north vote how we want them to so we don't care how they draw their lines!

 

[Ramsay Hunt Experience]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’

Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?

Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

Those two questions have nothing to do with whether the 15th Amendment authorizes the Voting Rights Act, or whether the 14th Amendment renders Section 5 of the Act unconstitutional. Seems odd to have even a "faint-hearted" textualist and Justice Balls and Strikes argue as if they do.

Those questions have to do with whether Congress is properly exercising the power vested to it via Section 5, and that's why the Justices are asking those specific questions. They're certainly not doing it for ####s-and-giggles.The 15th Amendment guarantees the right to vote and grants Congress the power to enforce that right with appropriate legislation. The question then becomes whether the Section 5 limitations are appropriate in 2013. In 1965, the preclearance requirements were authorized for just five years. But Congress has extended them four times, most recently in 2006 for 25 years. The questions above from today's argument cut to the rationality of Section 5 today. Regarding appropriateness and rationality Justice Thomas has previously stated, "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today."

In the end, despite the media suggesting that Section 5 will get struck down, I think it will be upheld.

And the bolded is exactly what's so bogus about the argument. Presumably Justice Thomas and Scalia are going to argue in the Prop 8 case that California had a rational basis for distinguishing between same-sex marriage and "traditional" marriage. And they will rely on a long history of "rational basis" jurisprudence that holds that Congress (or a state) need only have an ariticulable purpose for enacting legislation. The interpretation of the "necessary and proper" clause has been similarly expansive (at least until Robert's decision in the Obamacare case). But if we hold that "appropriate" modifies the Constitutional grant of the 15th Amendment so expansively, then "necessary and proper" modifies every single enumerated power granted to Congress. And by implication, the phrase "rational basis" would have to have similar teeth. Under that analysis every Congressional judgment would be presumed reviewable. The concept of deference to popularly elected legislatures, a supposed bedrock of "conservative" legal theory would be thrown out. It would be a massively activist decision if the Court were to follow the implications of the precedent. Of course, the Court wouldn't. Conservatives on the Court would never make the government really articulate the rational basis for the War on the Drugs, for instance (to be fair, neither would the liberals on the Court). So it would instead just be an outcome-oriented decision.EDIT: This is to say nothing of Thomas' and Scalia's refusal to apply limiting language in the 2nd Amendment (Heller) and in the IP Clause (they joined Ginsberg's majority opinion in Eldred).

 

[timschochet]

If the voting rights act is overturned, what will be the practical results?

 

[Maurile Tremblay]

If the voting rights act is overturned, what will be the practical results?

As I understand it, the entirety of the Voting Rights Act won't be overturned. It's only a particular section that may be overturned.

Since just after the Civil War, the Constitution has said that states can't prevent people from voting based on race (or otherwise design voting procedures so as to magnify or diminish the effect of people's votes based on race).

But a few southern states kept enacting voting barriers, such as literacy tests, that disproportionately affected blacks (and later Hispanics).The problem was that by the time such barriers were legally challenged and struck down, the election was already over and the harm already done. There'd be new, different barriers in place before the next election. Rinse, cycle, repeat.

So the Voting Rights Act was enacted, and it contained a few different provisions. Section 2, which applied to all states, said that states can't discriminate based on race when it comes to voting. Pretty much the same rule as before, and the same problem: by the time a case was litigated, the election was already over. Hence Section 5.

Section 5 applied only to Racist States*. It said that a Racist State can't change its voting procedures until after any proposed change is reviewed by the federal government. This prevented the rinse-cycle-repeat way around the law. States couldn't keep enacting new barriers as soon as the old barriers were struck down. Instead, any new barriers were ineffective until after they were approved as being non-racist. Suck it, Mississippi!

Section 5 was originally supposed to be in place for only five years, but it's been renewed a bunch of times since then, most recently in 2006. It's the 2006 renewal that is now being challenged under the theory that there's no longer a need to distinguish between Racist States and Non-Racist States, or something like that. I don't know the details.

I don't know what the practical effect of repealing Section 5 would be now.

_____

*Section 5 didn't use the phrase "Racist States." Instead, there was a formula contained in Section 4 for determining which states Section 5 applied to. It was based on facially neutral factors, like "jurisdictions where more than 50% of the population drinks sweet tea, wears wife-beaters, watches NASCAR, and drives pick-up trucks with over-sized tires and a shotgun rack." But everyone knew it was targeting the south.

 

[Ramsay Hunt Experience]

Yeah, I doubt the practical implications would mean much. Congress either would or wouldn't try again by changing the formula. For all I know Section 5 is bad policy. I just think the argument that it's unconstitutional doesn't make much sense, particularly when we consider who is making the argument.

 

[Flying Spaghetti Monster]

If the voting rights act is overturned, what will be the practical results?

As I understand it, the entirety of the Voting Rights Act won't be overturned. It's only a particular section that may be overturned.Since just after the Civil War, the Constitution has said that states can't prevent people from voting based on race (or otherwise design voting procedures so as to magnify or diminish the effect of people's votes based on race).

But a few southern states kept enacting voting barriers, such as literacy tests, that disproportionately affected blacks (and later Hispanics).

The problem was that by the time such barriers were challenged and struck down, the election was already over and the harm already done. There'd be new, different barriers in place before the next election. Rinse, cycle, repeat.

So the Voting Rights Act was enacted, and it contained a few different provision. Section 2, which applied to all states, said that states can't discriminate based on race when it comes to voting. Pretty much the same rule as before, and the same problem: by the time a case was litigated, the election was already over. Hence Section 5.

Section 5 applied only to Racist States*. It said that a Racist State can't change its voting procedures until after any proposed change is reviewed by the federal government. This prevented the rinse-cycle-repeat way around the law. States couldn't keep enacting new barriers as soon as the old barriers were struck down. Instead, any new barriers were ineffective until after they were approved as being non-racist. Suck it, Mississippi!

Section 5 was originally supposed to be in place for only five years, but it's been renewed a bunch of times since then, most recently in 2006. It's the 2006 renewal that is now being challenged under the theory that there's no longer a need to distinguish between Racist States and Non-Racist States, or something like that. I don't know the details.

I don't know what the practical effect of repealing Section 5 would be now.

_____

*Section 5 didn't use the phrase "Racist States." Instead, there was a formula contained in Section 4 for determining which states Section 5 applied to. It was based on facially neutral factors, like "jurisdictions where more than 50% of the population drinks sweet tea, wears wife-beaters, watches NASCAR, and drives pick-up trucks with over-sized tires and a shotgun rack." But everyone knew it was targeting the south.

Uhhhh..enacting voting barriers that disproportionally affect voters who will most likely vote for the party not in power.

 

[Ramsay Hunt Experience]

Uhhhh..enacting voting barriers that disproportionally affect voters who will most likely vote for the party not in power.

In fairness, assuming that could be empirically shown then Congress would presumably retain the power to legislate against it even if Section 5 were declared unconstitutional in this decision. In fact, if it could be shown empirically, then the Court would presumably have to strike it down even if Congress elected not to legislate against it under Section 1 of the 15th Amendment (and the 14th Amendment for that matter).

 

[Jewell]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’

Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?

Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

Those two questions have nothing to do with whether the 15th Amendment authorizes the Voting Rights Act, or whether the 14th Amendment renders Section 5 of the Act unconstitutional. Seems odd to have even a "faint-hearted" textualist and Justice Balls and Strikes argue as if they do.

Those questions have to do with whether Congress is properly exercising the power vested to it via Section 5, and that's why the Justices are asking those specific questions. They're certainly not doing it for ####s-and-giggles.The 15th Amendment guarantees the right to vote and grants Congress the power to enforce that right with appropriate legislation. The question then becomes whether the Section 5 limitations are appropriate in 2013. In 1965, the preclearance requirements were authorized for just five years. But Congress has extended them four times, most recently in 2006 for 25 years. The questions above from today's argument cut to the rationality of Section 5 today. Regarding appropriateness and rationality Justice Thomas has previously stated, "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today."

In the end, despite the media suggesting that Section 5 will get struck down, I think it will be upheld.

And the bolded is exactly what's so bogus about the argument. Presumably Justice Thomas and Scalia are going to argue in the Prop 8 case that California had a rational basis for distinguishing between same-sex marriage and "traditional" marriage. And they will rely on a long history of "rational basis" jurisprudence that holds that Congress (or a state) need only have an ariticulable purpose for enacting legislation. The interpretation of the "necessary and proper" clause has been similarly expansive (at least until Robert's decision in the Obamacare case). But if we hold that "appropriate" modifies the Constitutional grant of the 15th Amendment so expansively, then "necessary and proper" modifies every single enumerated power granted to Congress. And by implication, the phrase "rational basis" would have to have similar teeth. Under that analysis every Congressional judgment would be presumed reviewable. The concept of deference to popularly elected legislatures, a supposed bedrock of "conservative" legal theory would be thrown out. It would be a massively activist decision if the Court were to follow the implications of the precedent. Of course, the Court wouldn't. Conservatives on the Court would never make the government really articulate the rational basis for the War on the Drugs, for instance (to be fair, neither would the liberals on the Court). So it would instead just be an outcome-oriented decision.

Which is exactly why I said despite the questioning and the media thinking the Justices will vote to strike down Section 5, enough of them will exercise judicial restraint and vote to uphold it.With that said, if one side constantly exercises judicial restraint while the other side employs judicial activism -- the law will shift toward the more judicially active side over time. Those exercising judicial restraint recognize this trend, eventually become frustrated with it, and eventually rationalize that "if the other side is not going to exercise judicial restraint than why should we too". The bench then becomes little more tha an activist tug-of-war.

Stepping outside judicial restraint vs. judicial activism, personally do you believe that, in 2013, a presumption that, say, the Alaska state government is more likely to infringe on minority voter rights than, say, Oklahoma's state government is rational?

 

[IvanKaramazov]

With that said, if one side constantly exercises judicial restraint while the other side employs judicial activism -- the law will shift toward the more judicially active side over time. Those exercising judicial restraint recognize this trend, eventually become frustrated with it, and eventually rationalize that "if the other side is not going to exercise judicial restraint than why should we too". The bench then becomes little more tha an activist tug-of-war.

I came to something like this conclusion several years ago, in part because of some of the conversations we've had in this forum. If one "side" comes to view the court system as a sort of a super-legislature, then the other "side" really needs to do the same. Unfortunately, judicial restraint isn't a Nash equilibrium and I think it's probably better just to recognize that fact and readjust one's expectations.On a highly related note, the FFA is also primarily responsible for striking the term "judicial activism" from my vocabulary. That's another topic where I've benefited from some of the stuff I've read here.

 

[Jewell]

With that said, if one side constantly exercises judicial restraint while the other side employs judicial activism -- the law will shift toward the more judicially active side over time. Those exercising judicial restraint recognize this trend, eventually become frustrated with it, and eventually rationalize that "if the other side is not going to exercise judicial restraint than why should we too". The bench then becomes little more tha an activist tug-of-war.

I came to something like this conclusion several years ago, in part because of some of the conversations we've had in this forum. If one "side" comes to view the court system as a sort of a super-legislature, then the other "side" really needs to do the same. Unfortunately, judicial restraint isn't a Nash equilibrium and I think it's probably better just to recognize that fact and readjust one's expectations.On a highly related note, the FFA is also primarily responsible for striking the term "judicial activism" from my vocabulary. That's another topic where I've benefited from some of the stuff I've read here.

Are the Justices or federal judges actively legislating from the bench?  No.Are judges activists in the sense that they're openly championing causes?  No.Is invalidating Congressional legislation always a sign of judicial activism?  No.Is failing to follow precedent always a sign of judicial activism?  No.Does a Justice disagreeing with another Justice necessarily mean the differing opinion was reach through judicial activism?  Not necessarily, people can interpret the law differently.With all of that said, judges' political beliefs and opinions can certainly affect how they interpret the law.  It can lead him or her to see if there are legal grounds to invalidate a law whereas there may also be a legal argument to uphold the law.  Their worldview pushes them toward a legal view.  It may even be subconscious.People tend to give themselves the benefit of the doubt that they reached the correct legal decision, and that decision was based on the law and void of bias.  On the other hand, people naturally assume the opposing person reached the incorrect legal decision, and they reached the wrong decision because of their personal bias."Judicial Activism", as intended above, is this idea of a judge letting his personal/political beliefs shape how he interprets the law even if that interpretation is within the bounds of the law.  That does happen.  The suggestion above is that if Justices feel that other Justices are allowing their personal/political beliefs to shape their legal decisions, even if those decisions have a legal basis, then they too will look for a legal basis to interpret the law via their beliefs, and will surrender their allegedly more neutral way of currently interpreting the law.

 

[timschochet]

I'm still confused about the practical nature of the voting rights act. I don't understand why it is being challenged at this time, and what will exactly happen if it's overturned. It seems unlikely to me that any state will ever revert to the blatant racism of the Jim Crow years, despite the fact that the protesters outside the SC keep bringing that up. So how will this change, if it happens, affect things on the ground?

 

[IvanKaramazov]

I'm still confused about the practical nature of the voting rights act. I don't understand why it is being challenged at this time, and what will exactly happen if it's overturned. It seems unlikely to me that any state will ever revert to the blatant racism of the Jim Crow years, despite the fact that the protesters outside the SC keep bringing that up. So how will this change, if it happens, affect things on the ground?

Dear God, tim. There's been a ton of stuff written on why this is being litigated. Do a little reading before you post.

 

[timschochet]

I'm still confused about the practical nature of the voting rights act. I don't understand why it is being challenged at this time, and what will exactly happen if it's overturned. It seems unlikely to me that any state will ever revert to the blatant racism of the Jim Crow years, despite the fact that the protesters outside the SC keep bringing that up. So how will this change, if it happens, affect things on the ground?

Dear God, tim. There's been a ton of stuff written on why this is being litigated. Do a little reading before you post.

I have read some of that and watched reports as well. Still mystified though.

 

[Slapdash]

I'm still confused about the practical nature of the voting rights act. I don't understand why it is being challenged at this time, and what will exactly happen if it's overturned. It seems unlikely to me that any state will ever revert to the blatant racism of the Jim Crow years, despite the fact that the protesters outside the SC keep bringing that up. So how will this change, if it happens, affect things on the ground?

I think it is being challenged at this time because the Obama administration has been leaning on it to block states from enacting laws that disenfranchise minorities. Isn't this what the DOJ has been suing states like South Carolina under?

 

[Ramsay Hunt Experience]

It's hard to know the practical applications of the repeal of Section 5 because it would depend on what Congress did.Congress could repass a Voting Rights Act where every state had to submit any planned changes in voting procedure to be approved. That would presumably pass constitutional muster because every state is treated the same. Congress could repass a Voting Rights Act with a rejiggered formula and new Congressional findings and leave it to the states to sue again, so that federal courts are evaluating each reauthorization anew.Congress could just give up. States may (or may not) attempt some polling place shenanigans (changing voting hours, etc.). The Feds would have no authority to block those measures before hand, but individuals could attempt to sue under the 15th Amendment and try to obtain injunctive relief. That's a significant shift in the burden, but their rights under the 15th Amendment don't go away.

 

[Slapdash]

It's hard to know the practical applications of the repeal of Section 5 because it would depend on what Congress did.Congress could repass a Voting Rights Act where every state had to submit any planned changes in voting procedure to be approved. That would presumably pass constitutional muster because every state is treated the same. Congress could repass a Voting Rights Act with a rejiggered formula and new Congressional findings and leave it to the states to sue again, so that federal courts are evaluating each reauthorization anew.Congress could just give up. States may (or may not) attempt some polling place shenanigans (changing voting hours, etc.). The Feds would have no authority to block those measures before hand, but individuals could attempt to sue under the 15th Amendment and try to obtain injunctive relief. That's a significant shift in the burden, but their rights under the 15th Amendment don't go away.

I don't see any indication that Congress could pass a Voting Rights Act that addresses racial issues given the current climate.

 

[eaganwildcats]

Oof

 

[IvanKaramazov]

Oof

What's amazing about that story is that the reporter who wrote it never bothered to actually calculate the ratio of black voter turnout to white voter turnout to see whether Roberts was factually correct or not. The closest thing we get to that is

Galvin and political scientists speculated that Roberts drew his conclusions using US Census Bureau data known as “The Current Population Survey,” which collects information on voting and registration every other year. Political scientists say this is one of the few national databases, if not the only one, providing state-by-state voting information. But a review of those census data appears to contradict ­Roberts, showing such states as Washington, Arizona, and ­Minnesota with similar if not bigger gaps between black and white voters.

Which doesn't contradict what Roberts said. It's easy for a state to have a bigger raw different between white and black turnouts while still having a better ratio of black to white turnouts. For example, maybe in State X the white turnout is 100% and black turnout is 80%. In State Y white turnout is 60% and black turnout is 45%. That's a smaller difference (15% vs. 20%) but a worse ratio (0.75 vs. 0.80).I haven't looked at this part of the CPS data, well, ever, so I have no idea if the states in question fit that sort of pattern, but if I was writing a story on the topic and trying to tell whether the Chief Justice was correct or not, I think I'd do my homework instead of just speculating or refuting claims that he never made.Edit: I also like the "similar if not bigger" hedge. Was the Massachussetts gap biggest or not?

 

[dparker713]

Scalia: Voting Rights Act Is A ‘Perpetuation Of Racial Entitlement’

Scalia doesn't care anymore about the law, only for pushing his right wing agenda.

It looks like the majority of Justices may agree with Scalia.Is it your position that a law meant to address a grievance a half century ago should never be revisited?

Is it your view, to paraphrase Chief Justice Roberts, that the states who have DOJ oversight via the Voting Rights Act, in 2013, are more racist than other states not specifically mentioned in the Voting Rights Act?

Those two questions have nothing to do with whether the 15th Amendment authorizes the Voting Rights Act, or whether the 14th Amendment renders Section 5 of the Act unconstitutional. Seems odd to have even a "faint-hearted" textualist and Justice Balls and Strikes argue as if they do.

Those questions have to do with whether Congress is properly exercising the power vested to it via Section 5, and that's why the Justices are asking those specific questions. They're certainly not doing it for ####s-and-giggles.The 15th Amendment guarantees the right to vote and grants Congress the power to enforce that right with appropriate legislation. The question then becomes whether the Section 5 limitations are appropriate in 2013. In 1965, the preclearance requirements were authorized for just five years. But Congress has extended them four times, most recently in 2006 for 25 years. The questions above from today's argument cut to the rationality of Section 5 today. Regarding appropriateness and rationality Justice Thomas has previously stated, "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today."

In the end, despite the media suggesting that Section 5 will get struck down, I think it will be upheld.

And the bolded is exactly what's so bogus about the argument. Presumably Justice Thomas and Scalia are going to argue in the Prop 8 case that California had a rational basis for distinguishing between same-sex marriage and "traditional" marriage. And they will rely on a long history of "rational basis" jurisprudence that holds that Congress (or a state) need only have an ariticulable purpose for enacting legislation. The interpretation of the "necessary and proper" clause has been similarly expansive (at least until Robert's decision in the Obamacare case). But if we hold that "appropriate" modifies the Constitutional grant of the 15th Amendment so expansively, then "necessary and proper" modifies every single enumerated power granted to Congress. And by implication, the phrase "rational basis" would have to have similar teeth. Under that analysis every Congressional judgment would be presumed reviewable. The concept of deference to popularly elected legislatures, a supposed bedrock of "conservative" legal theory would be thrown out. It would be a massively activist decision if the Court were to follow the implications of the precedent. Of course, the Court wouldn't. Conservatives on the Court would never make the government really articulate the rational basis for the War on the Drugs, for instance (to be fair, neither would the liberals on the Court). So it would instead just be an outcome-oriented decision.EDIT: This is to say nothing of Thomas' and Scalia's refusal to apply limiting language in the 2nd Amendment (Heller) and in the IP Clause (they joined Ginsberg's majority opinion in Eldred).

This is a ridiculous assertion. There is no reason to presume that different words need to lead to similar standards. Besides the fact that rational basis never appears in the Constitution, how can you possibly read the necessary and proper clause as anything but modifying every single ennumerated power? Its the last clause in the section and reads "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." I'm not going to claim that any Justice on the Court actually has coherently applied their philosphy to the cases they've adjudicated, but there is a perfectly reasonable case to be made that the drafters of the 15th Amendment invited judical review of section 5 through the language of the amendment.

And Roberts' decision in the ACA case both expanded necessary and proper under the Taxation section and diminished it in the Medicaid section.

 

[badmojo1006]

The Supporters of Prop 8 have filed a brief against Gay Marriage using "Premartial Sex" as one of their arguments.

 

[fatguyinalittlecoat]

The Supporters of Prop 8 have filed a brief against Gay Marriage using "Premartial Sex" as one of their arguments.

That's not exactly their argument, but I'm not sure the one they make is really any better. Before this gay marriage thing, I've never heard anybody ever describe the government's interest in marriage as encouraging people to get hitched if they accidentally get knocked up.

 

[dparker713]

The Supporters of Prop 8 have filed a brief against Gay Marriage using "Premartial Sex" as one of their arguments.

That's not exactly their argument, but I'm not sure the one they make is really any better. Before this gay marriage thing, I've never heard anybody ever describe the government's interest in marriage as encouraging people to get hitched if they accidentally get knocked up.

Of course the pro gay marriage side has made the similarly odd argument that love somehow matters for a government sanctioned marriage.

 

[fatguyinalittlecoat]

The Supporters of Prop 8 have filed a brief against Gay Marriage using "Premartial Sex" as one of their arguments.

That's not exactly their argument, but I'm not sure the one they make is really any better. Before this gay marriage thing, I've never heard anybody ever describe the government's interest in marriage as encouraging people to get hitched if they accidentally get knocked up.

Of course the pro gay marriage side has made the similarly odd argument that love somehow matters for a government sanctioned marriage.

They have? That seems dumb. I haven't read the briefs so I don't know the context, though.

 

[Sand]

Any thoughts on the latest DNA ruling? I found, more than anything else, the split in the votes to be quite interesting. Scalia, Ginsburg, Sotomayor, and Kagan dissented on this one.

So the relatively far right and far left seem to agree on some personal freedoms while the middle has no issue with the police state...

 

[Ramsay Hunt Experience]

Any thoughts on the latest DNA ruling? I found, more than anything else, the split in the votes to be quite interesting. Scalia, Ginsburg, Sotomayor, and Kagan dissented on this one.

So the relatively far right and far left seem to agree on some personal freedoms while the middle has no issue with the police state...

Scalia's dissent is fun. All his characteristic derision in a package that liberals might enjoy.

I think it's a pretty hard question in truth. Assuming probable cause has been met, I'm not sure a DNA swab is any different than taking fingerprints. It feels intrusive. I get that. But it doesn't really feel like much of a departure from the existing jurisprudence.

I'm not particularly surprised by the split, as it's a question where originalism is of absolutely no help as an interpretative methodology, so Scalia's positions on these types of criminal law questions can be all over the place.

 

[Christo]

Any thoughts on the latest DNA ruling? I found, more than anything else, the split in the votes to be quite interesting. Scalia, Ginsburg, Sotomayor, and Kagan dissented on this one.

So the relatively far right and far left seem to agree on some personal freedoms while the middle has no issue with the police state...

Scalia's dissent is fun. All his characteristic derision in a package that liberals might enjoy.

I think it's a pretty hard question in truth. Assuming probable cause has been met, I'm not sure a DNA swab is any different than taking fingerprints. It feels intrusive. I get that. But it doesn't really feel like much of a departure from the existing jurisprudence.

I'm not particularly surprised by the split, as it's a question where originalism is of absolutely no help as an interpretative methodology, so Scalia's positions on these types of criminal law questions can be all over the place.

That's where I'm at. It isn't a benign as a picture/fingerprints. But it isn't as intrusive as taking blood. I think the majority is probably right. People leave their saliva all over the place. They spit. They drink out of glasses, cups and pop cans and throw them in the trash.

 

[RCon]

I don't much like the decision (the DNA one). I just don't trust the police state enough.

 

[Christo]

I don't much like the decision (the DNA one). I just don't trust the police state enough.

Unfortunately, privacy is the issue rather than incompetence and/or intent of the government.

 

[RCon]

I don't much like the decision (the DNA one). I just don't trust the police state enough.

Unfortunately, privacy is the issue rather than incompetence and/or intent of the government.

Well, yes, but one could certainly argue that privacy is the individual's best (and probably only) defense against government incompetence and malicious intent.

It's a shame there isn't any more land where civilizations can expand and create better forms of government. That's a lot easier than rebellion. Here's hoping seasteading works out...

 

[Christo]

I don't much like the decision (the DNA one). I just don't trust the police state enough.

Unfortunately, privacy is the issue rather than incompetence and/or intent of the government.

Well, yes, but one could certainly argue that privacy is the individual's best (and probably only) defense against government incompetence and malicious intent.

It's a shame there isn't any more land where civilizations can expand and create better forms of government. That's a lot easier than rebellion. Here's hoping seasteading works out...

Here's hoping you do better than the 100+ billion people who have already tried.