A pithy report on a minimalist case. Totenberg's take is that the Supreme Court "blinked" because the Voting Rights Act is so "iconic." If the case had gone the other way, we'd have heard about how hot the Court is to enforce federalism at the expense of other values, so I wish, when cases like this come out, reporters like Totenberg would at least note that the Court really doesn't seem to be that interested in federalism. Instead, Totenberg cues us to worry that the VRA is still threatened, and it just dodged a bullet this time.
UPDATE: The old blog is back, and this post is up over there now. I've copied the comments from here, so go there for commenting now.
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7 comments:
It seems to me that Totenberg always chooses the editorial hook that advances her personal political agenda.
Unlike some other courts in the past, the defining characteristic of this court is its aversion to addressing constitutional questions head on.
In every case that I can think of, they have played chicken with the underlying constitutional question of the case at hand. They seem to be running headlong into deciding an important issue "once and for all," and then suddenly swerve at the last minute and decide the case on the narrowest possible grounds.
I think they are giving Congress a chance to deal with it. I doubt that will occur.
An easy constitutional fix would be to have the VRA apply to all states. How likely do you think that is to happen?
For people like Nina it's always Mississippi in the 1950s.
In fairness, isn't that the cw reading of this case? That a judicial minimalist question avoided the constitutional question but made it fairly clear where its sympathies lie?
Since I am Australian, and this is the standard mode of Constitutional decision making here, I guess it seems so commomsense to me that it is hard to understand how anyone could object.
But I gather you guys like your Constitutional decisions big bold and bad - how's that worked out for you?
"In fairness, isn't that the cw reading of this case? That a judicial minimalist question avoided the constitutional question but made it fairly clear where its sympathies lie?"
I wasn't clear in my original post: I support this sort of decision. The problem is that the activist Left in this country WANTS the court to go over and above its authority to get judicially what it is unable to obtain legislatively, i.e., the recent discussion which took place in the comments here about forgoing a legislative path to gay marriage to pursue a strictly judicial one.
The judiciary in this country was not put in place to second-guess the legislative or to put forth its own opinions: it was established to ensure the proper application of the laws that Congress (and state governments) pass and ensure they comport with the Constitution.
Avoiding getting into the constitutionality of a case where it can be decided without "going there," should be the standard used by all courts in this country. Only as a last should the courts address constitutionality, and even then with the lightest touch possible.
It's the phrase "gutting the Voting Rights Act" that sticks in the craw. The point of the majority opinion is that the VRA has mostly outlived its usefulness, or as Thomas put in more directly, it's time to declare victory in that civil rights battle and move on. The provision they were addressing is, today, more nuisance than substance. Just not much left there to "gut."
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