The US Supreme Court carved out a narrow and near unanimous decision today which retains the pre-clearance provisions of the Voting Rights Act of 1965. All justices concurred in the opinion which remanded the case back to the District Court for further proceedings but, there was a partial dissent filed by Associate Justice Clarence Thomas.
The NW Austin Municipal Utility District filed an action to be removed from the pre-clearance provisions of the Voting Rights Act or to declare the statute unconstitutional insofar as it mandated the District be subject to the 2006 enactment of such requirement. The Supreme Court declined to declare Section 5 of the Voting Rights Act unconstitutional, and instead carved out a more limited remedy for political entities such as the utility district to have a private right to file suit to be removed from the pre-clearance requirement (presumably if the DOJ does not allow a “bail out”).
In his concurrence Associate Justice Thomas also dissented in part, arguing in favor of striking down the enforcement provisions of the Voting Rights Act, making the claim that;
Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of…’property qualifications’ …are gone. There is thus currently no concerted effort in these jurisdictions to engage in the ‘unremitting and ingenious defiance of the Constitution’ that served as the constitutional basis for upholding the ‘uncommon exercise of congressional power embodied in [Section] 5’ (citations omitted).
Nothing could be further from the truth.
It is in fact the case that since 1986, there have been “some 200 cases in which the voter change was withdrawn after DOJ objection” according to Associate Justice Souter in the oral arguments of the case. Associate Justice Breyer in the same oral argument noted that “[s]ince 1982 there were at least 105 successful Section 5 suits and 653 Section 2 suits.”
Justice Thomas went on:
Stephen L. Winter is a law professor at Wayne State University School of Law I’ve followed his excellent writings for many years. I recently read one of his more recent articles, “John Roberts Formalist Nightmare,” alleged in the January, 2009 edition of the University of Miami Law Review (63 U. Miami L Review 2009) (not available online).
To set the stage for his brutal critique of Supreme Court Chief Justice John Roberts, Winter considers four approaches to the meaning of “formalism.” In the first approach,
The term “formalist” is an epithet to describe a judicial decision that ascribes away responsibility (as in, “It’s not me, it’s my job . . . or the law, or the text, etc.”). Hence, formalism is the frequent refuge of socially and politically conservative judges when faced with the claims of reform movements.
The second approach is closely related to the first. It refers to “mechanical jurisprudence.” The basic idea is that “general doctrines can be applied deductively to decide specific cases, thereby assuring the objectivity and neutrality of judicial decision-making.” Under this approach, the reasoning process is “supposed to be guided solely by the formal entailment of the concept. Under this second approach, a judge will insist that a concept (e.g., “freedom of contract”) fully determines the outcome of a particular dispute, irrespective of the broader social ramifications.
The third approach connotes “hypertechnicality in judicial decision-making.” Winter points to two recent decisions by Chief Justice Roberts in which the United States Supreme Court rigidly applied legal deadlines “notwithstanding the presence of strong equable claims and long recognized exceptions.” One of those cases was Ledbetter versus Goodyear Tire & Rubber Co., a decision so palpably unfair in its anal-retentive application of a narrow statute limitations that Congress promptly got to work on the issue and recently overruled it. See here and here. As Winter points out, Ledbetter is a great example of the many instances in which “hypertechnicality and conceptualism often work hand-in-hand to provide a cover of necessity for willfully reactionary decisions.”
There is also a fourth sense of formalism. In this fourth approach to formalistic reasoning, concepts are treated as meaningful “entirely abstracted from their contexts. Winter gives the example of Plessy vs. Ferguson, in which the Supreme Court presented its solution to the case as one of “formal equality,” presuming the absolute equality of the races before the law, bringing to mind Anatole France’s famous quote that “The law in all its majesty forbids the rich and poor alike to sleep under bridges, to beg in the streets, and this deal their bread.” Winter laments that thanks to its ability to frame individuals in abstract ways, far from their real-life social contacts, this sense of formalism allows a court to simultaneously express regret for an outcome yet fiercely perpetuate it through conscious and narrowly tailored decision-making.
What do each of these senses of formalism haven’t common? Each of these approaches allows decision-makers to
give every appearance of deciding the case according to law without ever acknowledging that the law they are “following” is in actuality a product of their own interpretive acts. . . . Formalist legal reasoning engages the decision-maker in a performance of impersonal decision by appealing to authority. It disclaims the personal responsibility of the decision-maker and, though us, frustrates accountability. . . It operates in abstraction from the social prerequisites and consequences of law. In all these ways, formalism is anything but democratic . . . it is a distorting methodology that weighs on the law like a nightmare more reminiscent of the injustices of the 19th century than of a modern society that professes to value equal justice under law.
Stephen Winter’s analysis of formalism can be extended far beyond exercises in jurisprudence. It can be extended to all instances wherein someone wielding political power makes an argument or a decision by focusing tightly on a principle detached from the social context that gives that principle its legitimacy.
Winter’s article is also well worth reading for anyone who wants to see substantial evidence that the Chief Justice of the Supreme Court of United States is quite capable of a substantial misreading of one of the most important cases ever decided, Brown v Board of Education. For instance, Justice John Roberts claims that Brown determined the outcome of Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) in that Brown purportedly prohibited government classification and separation, whereas the boundary plan adopted by the Seattle and Louisville school boards did not “separate” students at all. These were plans that were adopted for the purpose of providing a remedy for racial isolation. Winter points out several other major distortions Roberts gives to Brown. Winter also establishes Roberts’ hypocrisy in criticizing a fellow justice (Justice Stephen Breyer) for relying on dicta when Roberts himself strays even further from relying on the holdings of precedent when he relied upon statements contained in appellate briefs, statements not included in Supreme Court opinions at all.
The United States Supreme Court was barely able to hold that it’s wrong to spend $3,000,000 electing a judge and than be able to have your newly purchased judge decide a big case in your favor. Decided June 8, 2009, Caperton v. A.T. Massey Coal Company Inc. was a 5-4 decision, with dissents by John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. The defendant in the West Virginia case was a coal company that had been accused of fraud, and the jury had awarded $50 M in damages against defendant. It was A.T. Massey’s Chairman and Chief Officer Don Blankenship who stepped in to buy the judgship for Brent Benjamin for $3 M after the verdict, knowing that this case would be considered by the West Virginia Supreme Court.
Chief Justice John Roberts frets that he can’t criticize this obviously wrong case of a $3,000,000 judge because there are less obvious cases that would be more difficult to decide. Think about it: Roberts is urging that the Court can’t decide the easy cases because there are also some other cases that aren’t so easy. Why not just hang up your robes and give it up? Tell me a situation where that isn’t true. Roberts goes even further, suggesting that hammering the $3,000,000 judge will undermine our fair, independent, and impartial judiciary.
Scalia had previously shown that he is completely obtuse to the idea of a conflict of interest when he decided a case favoring his duck-hunting buddy, Dick Cheney.