Roberts Deftly Takes Court Out of Political Arena

     The Supreme Court will not be a major political issue in the presidential election between Barack Obama and Republican Mitt Romney. That is the important secondary implication of Chief Justice John G. Roberts’ surprising decision to join with the court’s liberal bloc in upholding Obama’s signature domestic policy achievement, the Affordable Care Act, even as he rejected its premises on two counts as unconstitutional and un-American.
    Whether or not that was Roberts’ motivation, he has enough political savvy to recognize the effect and enough concern about the court’s institutional standing to be glad of it. Roberts’ vote to keep the health-care law essentially intact answers the politicians and pundits who, along with a growing number of Americans, saw the court as overtly partisan, toeing a Republican line.
    Before saving Obamacare, however, Roberts sided with Republican politicians, libertarian legal scholars, and the conservative commentariat in criticizing it. The individual health insurance mandate, Roberts said, amounted to “cradle to grave regulation” by a government of supposedly limited powers. “This is not the country the Framers of our Constitution envisioned,” he snapped.
      Unconstitutional as well was the way that the Democratic-controlled Congress and the Democratic president decided to expand the federal-state Medicaid program to ensure health care for more of the nation’s poor. The federal government would be paying for the expansion, but Roberts said the provision allowing the government to withhold Medicaid funds from any state that did not go along was unconstitutionally coercive. “A gun to the head,” he termed it.
    With those two passages, Roberts put himself on the side of that part of public opinion reflexively opposed to mandates and Washington. He also established, thanks to the votes of his four fellow conservatives in dissent, important legal markers for the future.
  The federal government’s powers to regulate interstate commerce, we now know, cannot extend to forcing people to buy health insurance – or cars or broccoli. It is hard to imagine the next case where this will be important, but putting the fanciful broccoli analogy into U.S. Reports amounts to a signal victory for the libertarians who dreamed it up.
  More importantly, Roberts and six other justices, including liberals Stephen G. Breyer and Elena Kagan, established an outer limit to the federal government’s Spending Clause power to use federal money to get states to go along with federal policies. The Court had never before found a federally imposed condition on federal money to be unconstitutional. That once-theoretical possibility is now real and — as lawyer Kevin Russell pointed out on SCOTUSBlog — could cast a shadow over federal anti-discrimination laws that threaten states with loss of federal money if they do not comply.
  With these legal victories, it is no wonder that conservatives and libertarians view their glass as at least half full. “Lose the battle, win the war,” wrote Jonathan Adler, law professor at Case Western Reserve University, also on SCOTUSBlog’s free-for-all after the decision was announced. In like vein, Ilya Shapiro, editor in chief of the Cato Supreme Court Review, proclaimed, “We won everything but the case.”
    Justice Ruth Bader Ginsburg spoke for all four liberals in complaining that Roberts’ disquisition on the Commerce Clause was unnecessary if he was going to uphold the individual mandate as a constitutionally valid tax. Roberts’ response is singularly unconvincing. He explained that he would not have been forced to construe the act’s penalty as a tax but for finding its major rationale invalid.
   Once construed as a tax, however, the “exaction” from the relatively small number of Americans who do not have insurance but can afford it is clearly within Congress’s power. As Roberts noted, the Court’s precedents make clear, for example, that the federal government can tax a lottery even if it has no power to run one.
   The political consequences of declaring the insurance mandate to be a tax can only add to its unpopularity. “ObamaCare Taxes the American People and the House Will Repeal It,” House Republican Leader Eric Cantor declared in the press release announcing the scheduled July 11 vote on scrapping the bill altogether. The release is good short-term politics even if the move is doomed to fail in the Democratic-controlled Senate – and in any event would be vetoed by Obama.
    For many legal scholars, Roberts is also unconvincing in rejecting the individual mandate as an exercise of Congress’s Commerce Clause power. Ginsburg recapitulated the argument that the “shared responsibility” provision forces health care customers to prepay for care through insurance rather than risk imposing the cost of unforeseen and uncompensated care on others. Roberts conceded that states could impose the requirement through their police power; Ginsburg countered that Congress has powers commensurate with the nationwide nature of the problem.
   Roberts’ tie-breaking vote to uphold the law takes the court out of the political cross-hairs of Democrats and progressives. The indignant denunciations from some conservatives will soon be forgotten, especially when Roberts returns next term as the conservative leader of a conservative Court. For the moment, however, Roberts took one for the team — the Court — even if none of his colleagues thanked him for it.

Roberts Court Unmasked by Anti-Union Ruling

      The Supreme Court has been getting bad press recently for an ideological divide that exactly corresponds to the justices’ political backgrounds: five Republican-appointed conservatives versus four Democratic-appointed liberals. In an end-of-term wrap-up, however, one of the best of the current Supreme Court advocates suggested that the critique was overblown, that the court’s rulings this year have shown surprising unanimity in some difficult and seemingly contentious cases.
      The suggestion from Paul Clement, the former Republican U.S. solicitor general and go-to lawyer for conservative causes, had enough substance for a possible column. Chief Justice John G. Roberts Jr. as the Great Conciliator, the headline might say. Roberts was finally fulfilling his confirmation promise, the column would say, to work for more unanimity on the court by deciding cases narrowly with scrupulous regard for precedent.
      Clement had examples to prove his point, and others can be seen in a review of the past year’s decisions. But before the column could be written, Roberts and his fellow conservatives threw the thesis for a loop. In a remarkable display of conservative activism, the court last week (June 21) issued a precedent-bending decision on one of the most politically contentious issues of the past year: the political influence of public employee unions.
      The decision, Knox v. Service Employees International Union, stems from a politically charged episode in California in 2005. Gov. Arnold Schwarzenegger had called a special election in November to vote on two ballot measures that would curb public employee unions’ political clout and trim pay and benefits for state government workers. Public employee unions mobilized to fight the measures, which in fact the voters rejected, somewhat soundly.
      To raise money for the “Fight Back Fund,” SEIU and other public employee unions imposed a special assessment. The assessment notice went to all employees covered by the union’s collective bargaining contract, union members and non-members alike. But it did not include the notice, required for regular assessments under a Supreme Court precedent, that non-union members could opt out of paying any portion of the assessment allocated to the union’s political activities.
      The earlier Supreme Court decision, Teachers v. Hudson (1986), balanced the interests of public employee unions in financing their collective bargaining activities and non-union members who might object to the union’s political work. Unions were allowed to charge non-union members for representing them in labor negotiations. But the court recognized a constitutional right for non-union members to avoid being forced to subsidize “ideological activity” to which they objected.
      The procedural safeguard established — the so-called Hudson notice — does not sit well with public employee unions, but they have lived with it. In hindsight, SEIU made a mistake in not sending such a notice when it issued the special assessment in 2005. Seven justices agreed on that point, which was all that was necessary to decide the present case.
      The Roberts Court’s conservative bloc went further. In an opinion dripping with anti-union animus, Justice Samuel A. Alito Jr. depicted the existing legal rules as “a remarkable boon” for unions. SEIU’s “aggressive use of power to collect fees from nonunion members” he termed “indefensible.” And the remedy for the future was not simply to require a Hudson opt-out notice for special assessments, but to establish an opt-in requirement that prevents unions from imposing any part of a special assessment unless the non-union member “affirmatively consents.”
      The existing rule already imposes “a significant burden for employees,” Alito wrote. “[T]he burden would become insupportable if unions could impose a new assessment at any time, with a new chargeability determination to be challenged.”
      As Justice Stephen G. Breyer pointed out in dissent, that passage casts doubt on a precedent accepted as settled for a quarter-century. More troublingly, the conservative majority reached out to take sides in political disputes now raging in state capitals: think Wisconsin. “There is no good reason for the Court suddenly to enter the debate,” Breyer wrote, “much less now to decide that the Constitution resolves it.”
      Breyer spoke for all four liberal justices on the point: Elena Kagan joined his dissent, while Sonia Sotomayor and Ruth Bader Ginsburg rejected the new opt-in requirement even while agreeing with the majority on the result in the case. “I cannot agree with the majority’s decision,” Sotomayor wrote, “to address unnecessarily significant constitutional issues, well outside the scope of the questions presented and briefing.”
      The decision came on the same day that the court neatly finessed another highly contentious issue: broadcast indecency. In a unanimous ruling, the court in FCC v. Fox Televisions Stations threw out findings that Fox and ABC violated indecency rules by fleeting expletives (in Fox’s case) and fleeting body parts (in ABC’s) but left it up to the FCC to consider changing its policy in the future.
      Credit Roberts perhaps with helping fashion unanimity on an issue that had divided the justices in argument. But credit him too with the activist, 5-4 ruling on public employee unions that would have lacked a majority without his vote. Side by side, the two rulings exemplify the Roberts Court’s dual personalities — alternating between judicial restraint and politically-tinged activism. With major rulings due this week on President Obama’s health care law and Arizona’s immigration law, the nation waits to see which of the court’s personalities will win out as a momentous term ends.

Guantanamo Prisoner Trapped in Fog of Law

      The Supreme Court knows how to ride herd on federal appeals courts. Just ask the Federal Circuit Court of Appeals, which has seen any number of its patent law rulings flushed down the judicial toilet in recent years. Or the Ninth Circuit, which the justices regularly use as a punching bag when it rules in favor of a suspect, criminal defendant or state prisoner.
      For reasons known only to the justices, however, the Supreme Court is taking a hands-off policy toward the D.C. Circuit in Guantanamo habeas corpus cases. The conservative majority on the D.C. Circuit has consistently rejected efforts by Guantanamo prisoners to challenge the government’s grounds for holding them. The Supreme Court has stayed its hand even as the lower court judges, in at least one ruling, mocked the court’s landmark decision that guarantees detainees a “meaningful opportunity” to challenge the government’s case against them.
      The justices’ inaction became official last week (June 11) when the court rejected petitions for certiorari filed by seven Guantanamo prisoners seeking review of D.C. Circuit rulings upholding their detention. The justices had taken their time to consider the cases over six conferences stretching back to February. But when the court’s orders list was released on Monday morning, reporters found nothing but the standard listing for cert denials: no dissenting statements explaining why the court should have accepted any of the cases, no replies explaining why the D.C. Circuit got the cases exactly right.
      The seven rulings left standing by the Supreme Court include one of particular importance. In Latif v. Obama, the D.C. Circuit established an evidentiary rule that limits a prisoner’s ability to contest intelligence reports based on interviews conducted in theater-of-war conditions hardly conducive to scrupulous accuracy. Under the 2-1 ruling, an intelligence report compiled in the Afghanistan war zone is entitled to the same “presumption of regularity” that normally attaches to official government records, like a tax receipt, prepared in normal workday conditions.
      The petitioner in the case, Adnan Latif, was turned over to U.S. forces during the Afghanistan war in 2001 and has been held at Guantanamo since 2002. The Yemeni national contends that he was charged with supporting al Qaeda and the Taliban based on a misunderstanding of his statements to U.S. interrogators as translated by an interpreter. As Latif tells it, he was in Afghanistan seeking medical care, unavailable in Yemen, for injuries from an auto accident in 1994.
      Writing for the majority, Judge Janice Rogers Brown acknowledged that the report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted for national security purposes.” Even so, Brown said courts have to accept the report — with incriminating statements attributed to Latif — as an accurate account of what he said unless he could convincingly refute the report’s “presumption of regularity.”
      The ruling prompted a sharp dissent by Judge David Tatel, the lone Democratic appointee on the panel. Tatel quoted the majority’s critique of the report and added complaints of his own. The report, he wrote, “was produced in the fog of war by a clandestine method that we know almost nothing about.” Why, he asked, should a court have to presume that it is accurate?
      Latif’s version of events was enough to satisfy U.S. District Court Judge Henry Kennedy, who ordered him released “forthwith” in July 2010. Kennedy acknowledged inconsistencies in Latif’s stories, but concluded that the government had failed to prove that he was associated with al Qaeda or the Taliban.
      On appeal, Brown and fellow Republican appointee Karen LeCraft Henderson ruled that Kennedy should have accepted the intelligence report as an accurate account of what Latif said after his capture. The ruling sent the case back to Kennedy, a Clinton appointee, to reconsider the evidence as instructed.
      In her opinion, Brown was not content with criticizing Kennedy. She criticized the Supreme Court as well for its 2008 ruling, Boumediene v. Bush, that requires the Guantanamo prisoners be provided “meaningful access to a judicial forum.” The ruling’s “airy suppositions,” Brown wrote, “have caused great difficulty for the Executive and the courts.” In his dissent, Tatel complained that his colleagues were thumbing their noses at the high court. “It is hard to see what is left,” Tatel wrote, “of the Supreme Court's command in Boumediene that habeas review be ‘meaningful.’”
      The ruling prompted sharp criticism at the time among the small number of observers following the D.C. Circuit’s habeas decisions carefully. Peter Marguiles, a professor at Rhode Island University School of Law who has represented Afghan detainees, complained of the majority’s “excessive deference” to the government. Benjamin Wittes, an expert at the Brookings Institution who has been supportive of the government’s detention and interrogation policies, called the ruling “wrong.” Today, Wittes calls it “an outlier.”
      The Supreme Court, however, saw no reason to lift a finger either in behalf of Latif or in defense of its own precedent. Latif, now 35, has spent most of his adult life at Guantanamo in what he called in a letter “a wild nightmare.” There he will remain, having been captured in the fog of war and held ever since in the fog of law that the Supreme Court has failed to clear up.

Dissing the Court Bears a Poisonous Fruit of Distrust

      Alex Kozinski had served as chief judge of the U.S. Court of Claims in Washington for two years in 1984 when he decided he wanted a change of jobs and locations. So he wrote to his friend, White House counsel Fred Fielding, who had initially recommended Kozinski to President Ronald Reagan for the judgeship, to request appointment to the Ninth U.S. Circuit Court of Appeals out in California.
      Kozinski had personal reasons for moving to California: his family and his wife’s both lived there. And he thought he had earned favorable consideration, in his words, by “leading the Claims Court through a very difficult time in its history, without dissension or controversy.” But to cinch the argument, Kozinski emphasized what he described as the Nitnth Circuit’s “need of judges with a conservative judicial philosophy.” If appointed, Kozinski vowed, “I promise to do my very best there so that you and the President can be proud of me.”
      Kozinski’s letter, which recently surfaced as part of the Reagan White House archives, raises eyebrows three decades later for its matter-of-fact promise from a sitting judge to serve the president's agenda if elevated to a higher court. But it is hardly surprising to learn that Reagan had an agenda in his judicial appointments, just like two other notable Republican presidents: Richard M. Nixon before him and George W. Bush after.
      The fruits of the more than 40 years of politicization of the courts by the Republican Party may now be reflected in a new poll that shows confidence in the U.S. Supreme Court at an historic low level. The New York Times/CBS News poll, published last week (June 8), found that only 44 percent of those responding approved of the way the Supreme Court is doing its job. As the Times account noted, approval of the court was as high as 66 percent in the 1980s and remained above 50 percent even after the controversial Bush v. Gore decision in 2000.
      More disturbingly, more than three-fourths of those polled – 76 percent – say the justices “sometime let personal or political views influence their decisions.” And a majority — 55 percent — say that the justices’ decision later this month on President Obama’s health care law will be “mainly based on personal or political views,” not on legal analysis (13 percent).
      The court’s sagging approval rating comes at a time when Congress’s numbers are dismally low — in the 10 percent range. Presidential approval ratings have been increasingly volatile for the past two decades. Americans are in a sour mood, politically. So it is perhaps not surprising that the court would also feel the sting of the public’s ingratitude.
      Still, as University of Southern California political scientist Lee Epstein told the Times, the poll calls into question the conventional wisdom that the court can stay somehow above the transient winds of public opinion even as it rules on contentious issues of the day. If the court now finds itself in the political thicket, is there blame to be laid?
      One is tempted to lay the blame on both major political parties. After all, President Obama and leading Democratic senators have laid into the Roberts Court for the past three years for what they see as an anti-democratic activism wielded often in behalf of corporate interests. But a longer historical perspective makes clear that it is the Republican Party that has politicized the Supreme Court, deliberately and wantonly, with little if any regard for the potential damage to the court’s long-term ability to maintain public confidence.
      Nixon started the rhetorical attacks on the court that are now standard fare from Republican politicians and that morphed into the more strident attacks on the court’s legitimacy from Tea Party types. Nixon also started the practice of picking justices based more on conservative ideology than judicial temperament.
      Among the 15 Supreme Court nominations by GOP presidents starting with Nixon, all but three were markedly more conservative than the justices they were to replace. The three exceptions resulted from unique circumstances: President Gerald Ford picked John Paul Stevens to try to calm the post-Watergate climate; Reagan nominated Anthony M. Kennedy only after the failed nomination of conservative ideologue Robert Bork; and President George H.W. Bush picked David H. Souter out of an instinct for bipartisanship.
      Bork was one of three failed nominations; Nixon’s two rejected nominees — Clement Haynesworth and G. Harrold Carswell — insulted the court’s dignity. Some of the successful nominations also lacked respect for the court’s stature. Reagan’s elevation of William H. Rehnquist to be chief justice and selection of Antonin Scalia for Rehnquist’s seat amounted to a conservative poke-in-the-eye to bipartisanship. The first Bush’s description of the inexperienced Clarence Thomas as “the best qualified” candidate for the court was laughable.
      Today, the court is for the first time in history divided along an ideological fault line that corresponds exactly to the justices’ partisan background: five Republican-appointed conservatives, four Democratic-appointed liberals. A public now conditioned to the politicization of Supreme Court appointments by GOP presidents may naturally think that it is all politics — not “all law,” as Sonia Sotomayor promised in her confirmation hearing. The court’s lowered esteem is a burden that the court carries as it confronts issues that are hard enough legally without the added challenge of rendering a decision that can win respect in a politically polarized era.

Narrow Ruling on DOMA May Be What Gay Advocates Need

            The federal appeals court that struck down the key part of the federal Defense of Marriage Act (DOMA) threaded a needle to find legal precedents for ruling that the law improperly discriminates against gays and lesbians. The narrowness of the decision may make it easier for the Supreme Court to come to the same conclusion in an appeal likely to reach the justices in their next term.

            The decision by the First U.S. Circuit Court of Appeals in Massachusetts v. U.S. Dep’t of Health and Human Services (May 31) struck down the section of the 1996 law that denies to same-sex couples any federal benefits normally provided to opposite-sex couples — for example, the ability to file joint instead of separate federal income tax returns. Lawyers from the Boston-based Gay and Lesbian Advocates and Defenders (GLAD) represented legally married couples and widowers from Massachusetts in challenging the law as a violation of equal protection principles.

            The lawyers had two main arguments, either of which could doom not just DOMA but also all of the state bans on same-sex marriages. They argued, first, that sexual orientation is a “suspect classification” that triggers the highest level of constitutional review: “strict scrutiny.” DOMA fails that test, they argued, because the law does not advance any “compelling” government interest nor is “narrowly tailored” to serve any such interest.

At the other end of the constitutional spectrum, the lawyers argued that DOMA cannot survive even the minimal “rational basis” standard of constitutional review. The law does not advance any legitimate governmental interest whatsoever, the lawyers contended.

            The three-judge panel — consisting of two Republican and one Democratic appointee — rejected both of those positions. Writing for the panel, Judge Michael Boudin explained that the First Circuit had refused three years ago to recognize sexual orientation as a suspect classification and that the panel was bound by that precedent. Boudin added that creating a new suspect classification would have “far-reaching implications” by casting doubt on marriage laws “in a huge majority of individual states.”

            Applying the standard rational-basis test, the panel found that DOMA passes constitutional muster, if barely. The 1996 Congress claimed that DOMA would save the federal government money – by limiting benefits or tax preferences to opposite-sex couples only. Boudin said Congress was entitled to deference on that issue even though experts today say that recognizing same-sex marriages could actually save money for the federal government.

            Seemingly out of nowhere, however, Boudin found a different level of constitutional review to apply to DOMA—a standard that it fails, badly. Boudin said that the Supreme Court, in several cases, had engaged in “a closer than usual review” of laws that affected a “historically disadvantaged or unpopular group” and that had “thin, unsupported, or impermissible” justification.

            In one of those cases, U.S. Dep’t of Agriculture v. Moreno (1973), the court struck down a law denying food stamps to households containing unrelated individuals. The court said the law denied food stamps to many needy households and appeared to be motivated solely by a “desire to harm a politically unpopular group.”

            A decade later, the court in City of Cleburne v. Cleburne Living Center (1985) overturned a local ordinance denying a special permit for a group home for the mentally disabled. As in Moreno, the court said the justification for the ordinance seemed thin and the motivation appeared to be “negative attitudes” toward an unpopular group.

            Even without creating a new suspect classification, Boudin acknowledged that gays and lesbians “have long been the subject of discrimination.” The Supreme Court’s somewhat overlooked precedents dictate a “more careful assessment” than usual of laws that disadvantage them, as DOMA does.

Boudin then went through and rejected each of four possible justifications for DOMA offered by former solicitor general Paul Clement on behalf of the House Republican leadership seeking to uphold DOMA. (At President Obama’s direction, the Justice Department is not defending the law.)  Saving the federal government money would be an impermissible justification even if true, Boudin said.

As to the other three rationales, Boudin found no evidence that the law promotes child-rearing in “stable” marriages since it extends no benefits to opposite-sex couples and cannot prevent same-sex couples from bearing or adopting children. Moral disapproval of homosexuality is now recognized as an impermissible justification, Boudin continued. And the final supposed rationale — to “freeze” the marriage issue for further debate — makes no sense, Boudin said, because the law has no expiration date.

In a final point, Boudin noted that marriage has traditionally been a state prerogative. Acknowledging Massachusetts’ role as plaintiff in one of the consolidated cases, Boudin said the state can insist that a federal law interfering with its marriage policies have some particular federal interest—and DOMA has none.

The appeals court stayed its ruling pending the inevitable appeal to the Supreme Court, which seems likely to get the case in time for a decision by June 2013. The high court has been slow to take on cases touching on gay marriage. The DOMA case gives the justices a chance to take on this issue with a small bite. And the First Circuit’s ruling charts a path that steers clear of creating new precedents. Gay rights advocates may not get exactly what they want out of this case. But they may just get what they need.

Congress vs. Roberts Court on Voting Rights Act

            The Reconstruction Congress that proposed the Fifteenth Amendment to prohibit racial discrimination in voting recognized that recalcitrant states and localities might employ some ingenious devices, like poll taxes or literacy tests, to deny suffrage to newly freed slaves. The drafters feared, however, that putting specifics into the amendment could jeopardize ratification.  So they made do with a prophylactic safeguard that gave future Congresses the power to “enforce” the amendment “through appropriate legislation.”

            Over the next century, states in the Deep South and elsewhere resorted to any number of ostensibly neutral but patently discriminatory devices to keep African Americans from voting. Only after decades of disenfranchisement of African Americans, often accomplished through brutal force, did Congress finally pass “appropriate” legislation: the Voting Rights
Act of 1965.

            Today, the Voting Rights Act is recognized as the essential instrument in gaining a nearly equal franchise for African Americans to that of white Americans. Paradoxically, it has been so successful that one of its two central provisions is now under constitutional challenge as no longer necessary. And that issue is only one step away from the Supreme Court, after a ruling this month (May 18) to uphold the act’s so-called preclearance provision despite doubts raised by the high court itself.

            The preclearance provision, section 5 in the act, requires covered states and localities to submit any change in election law or procedure to the U.S. Justice Department or a three-judge federal court in Washington before adoption. Five Deep South states are covered (Alabama, Georgia, Louisiana, Mississippi, and South Carolina), based on criteria included in the original act and tweaked several times since. Virginia was also originally covered in toto, but some local jurisdictions have used the act’s so-called bailout provision, section 4(a), to get out of the requirement. Alaska and portions of other states have come under the requirement in the years since because of low registration of minority voters.

            Evidently, the South of the early 21^st century is much different from the South of the 1960s. Among those noting the difference is Chief Justice John G. Roberts Jr., writing in the decision three years ago that left the preclearance provision in place, at least for now. “Things have changed in the South,” Roberts wrote for an all but unanimous court in Northwest Austin Municipal Utility District No. 1 v. Holder (2009). “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

            Congress, however, was not so sanguine in 2006 when it renewed the Voting Rights Act, including the preclearance provision, for another 25 years and by substantial bipartisan majorities. The ruling by the U.S. Court of Appeals for the District of Columbia Circuit in the new challenge, Shelby County (Ala.) v. Holder, cites some of the evidence that Congress heard before deciding to leave section 5 intact.

            Writing for the majority, Judge David Tatel noted several modern instances of blatant racial discrimination in the covered Deep South states. As one example, Walker County, Texas, sought to lower black voting in 2004 by reducing early voting at polling places near a historically black university and threatening to prosecute students for illegal voting. In another, Kilmichael, Miss., abruptly canceled an election in 2001 when “an unprecedented number” of African Americans ran for office. Another: Webster County, Ga., redrew school board districts in 1998 after a majority black school board was elected for the first time.   

            Just as important in the appeals court’s view are the instances of potential discrimination that have not been instituted thanks to the preclearance requirement. The Justice Department continues to use section 5 to block questionable election law changes by interposing objections – about 28 times per year. That rate that has remained somewhat constant since 1965. In addition, jurisdictions sometimes withdraw proposed changes after the Justice Department requests more information. Congress counted about 800 such instances from 1990 to 2005.

            The Justice Department also combats racial discrimination with the act’s other central provision: section 2, which prohibits nationwide any election law change that has the effect of denying or abridge minorities’ voting rights. Between 1982 and 2005, the government won 653 section 2 suits in covered jurisdictions – more than 25 per year. As Tatel noted, however, section 2 litigation is less effective than the preclearance provision at preventing racial discrimination because the remedy kicks in only after the questioned changes have been put into effect.

            In dissent, Judge Stephen Williams saw no logic to continuing to single out some states and localities for disfavored treatment. He noted the paradox that the Supreme Court allowed Indiana to implement a photo-ID voting requirement, but the Justice Department has blocked similar laws in South Carolina and Texas. The majority’s answer lies with statistics that show voting rights issues continue to crop up disproportionately in the Deep South states. And they note that the law has been revised to make it easier for jurisdictions to prove a clean voting rights record and get out from under the preclearance requirement.

            Those considerations were good enough for Congress to pass and President George W. Bush to sign a long renewal of the Voting Rights Act. It remains to be seen whether they will be good enough for a Supreme Court that professes judicial restraint but often practices something else.

Mislaying the 'Blame' for Citizens United

            The secret deliberations of Supreme Court justices ordinarily emerge, if at all, only years after the fact. But in a startling, if understated, scoop, Jeffrey Toobin has disclosed what he depicts as suspect maneuvering in a decision barely two years old: the 5-4 ruling in the Citizens United case, which gave corporations a First Amendment right to spend unlimited sums on political campaigns.

            Toobin, the prolific author and CNN legal commentator, broke the news of the behind-the-scene events in an article in the New Yorker, excerpted from his forthcoming book due out in September The Oath: The Obama White House vs. The Supreme Court. In an article that bears the accusatory subhead, “How John Roberts orchestrated Citizens United,” Toobin blames Roberts for converting what could have been a narrow, statutory decision on federal campaign finance law into an aggressive, precedent-overruling decision granting corporations a constitutional right to tilt the political system in favor of the Republican Party.

            The sequence of events in Citizens United is public record. The oral arguments in March 2009 were followed by the court’s surprising decision in late June to call for rearguments in September. The court issued its ruling in January 2010 in a forceful majority opinion by the supposedly moderate conservative Anthony M. Kennedy along with a long and passionate dissent by the couort’s senior liberal, John Paul Stevens.

            With no named sources, Toobin adds to the public record by disclosing that Roberts initially wrote a self-assigned majority opinion on narrow grounds that failed to gain majority support from the conservative bloc after Kennedy wrote a concurrence calling for a broader decision. Kennedy’s now-majority opinion drew a vigorous dissent from David H. Souter, who pointedly complained about the irregularity of ruling on a question not presented and argued in the case. Stung, Roberts decided to call for a second round of arguments specifically to address the question of overruling the court’s two precedents upholding bans on direct corporate or union spending in political races.

             As Toobin writes — and as court watchers understood at the time — the outcome of the second round of arguments was predetermined. The conservative majority would not have asked about overruling the prior cases unless they planned to follow through — as they did. The result, Toobin concludes, “represented a triumph for Chief Justice Roberts.”

            “Even without writing the opinion,” Toobin continues, “Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.”

            Toobin’s conclusion matches the theme of the new book: a popularly elected, Democratic president versus an unelected court split along partisan lines with Republican appointees in the majority. But one does not have to approve of Citizens United or the Roberts Court’s aggressive stance on campaign finance and other, even hotter-button issues such as abortion and school integration to find the singling out of Roberts unsupported by the evidence.

            Omitted in Toobin’s telling is any mention of Roberts’s unusual, 14-page concurring opinion seeking to square his vote in the case with what he calls “the important principles of judicial restraint and stare decisis” — that is, respect for precedent. Retracing some of the ground from Kennedy’s opinion, Roberts argues that the first of the two precedents being overruled, Austin v. Michigan Chamber of Commerce (1990), was an “aberration” at the time and was now being defended by the government on untenable grounds not used in the original decision. Stare decisis, Roberts writes, “commands deference to past mistakes, but provides no justification for making new ones.”

            With Toobin’s new information, Roberts’s separate opinion can be seen not so much as an affirmative endorsement of the ruling but as a defensive reply to Souter’s unfiled dissent. Roberts, it would seem, was a reluctant bull in the jurisprudential china-breaking. The blame for the activist result in Citizens United lies first with Kennedy, who had dissented in Austin and again in the court’s first ruling to uphold the major parts of the McCain-Feingold campaign finance law, McConnell v. Federal Election Commission (2003). Roberts might have withheld his vote once the rest of the conservatives had shown they were ready to overrule both of the earlier decisions, but a plurality opinion would have left campaign finance law in a muddle as election season was about to get under way.

            Toobin closes by highlighting the role that independent campaign expenditures have played and are playing in the 2012 presidential election: the multimillion-dollar spending by gambling mogul Sheldon Andelson in support of Newt Gingrich and by Wyoming financier Foster Friess in support of Rick Santorum. Those expenditures, however, appear to have been made individually, not through corporations; and independent, individual spending on political campaigns has been constitutionally protected since the court’s first brush with modern campaign finance law in Buckley v. Valeo (1976).

            By contrast, corporations so far have not rushed into the opening that Citizens United gave them for unlimited political spending without the burden of creating separate political action committees (PACs). The free-campaign speech crowd is applauding Citizens United as a vindication of the First Amendment even as critics are condemning it for tilting the political playing field further toward business interests. Both sides may be exaggerating its impact, just as Toobin is in blaming Roberts personally for the decision.