Judicial Hubris: Confer

Justice Ginsburg, dissent from the VRA decision:
[T]he Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making... Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.... Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today... The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled.
Justice Scalia, dissent from the DOMA decision:
We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America. The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case.... Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.


RonF said...

"Congress approached the 2006 reauthorization of the VRA with great care and seriousness."

Justice Ginsberg is apparently quite unaware of how Congress conducts its business. Unless she thinks that they approached the re-authorization of the VRA in a manner similar to the way that they select a restaurant for the evening or have their campaign appearances organized.

If the changes that were made to the VRA "guts" protection against voter discrimination, how is it that voter ID laws - which is opposed by many who claim that they discriminate against minorities - have been almost all blocked from use in the election after they were passed because they were being appealed? Including in states that the repealed sction of the VRA never applied (e.g., Indiana)?

E Hines said...

It's interesting to me that no one has brought a voter discrimination suit seeking sanction IAW the 2nd clause of the 14th Amendment, as colored by the 19th Amendment.

A State can restrict access to the voting booth if it's willing to pay the constitutionally mandated price.

Eric Hines

Grim said...

Now that's an interesting concept, Mr. Hines.

E Hines said...

What Justice Ginsburg also writes, and she's actually serious about it, is

The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments "by appropriate legislation." With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated.

Indeed, she opens her dissent with this statement.

What she ignores is that §5 does continue in force, abated only by the need for Congress to update the §4 rule that actualizes it. In fact, this is the heart of Justice Thomas' separate concurring opinion: he thought §5 should have been struck, also. Such an update, though, Ginsburg seems to imply, contradictorily, is beyond Congress' ability to do with great care and seriousness.

Nor is it hubris for the Court to restore the 50 States to their equal sovereignty, their equal status before Federal law; it is, rather, hubris for the dissenters to insist that the Court should maintain the Federal boot on the necks of states and counties that have long since ceased to sin in the held-against manner and long since mended their ways.

Eric Hines