June 2009

  • June 10, 2009
    Guest Post

    By Judith E. Schaeffer, Vice President, Constitutional Accountability Center (CAC). This guest blog is also cross-posted on the CAC's Text & History Blog.

    Sometime in the next few weeks, the Supreme Court will issue what may well turn out to be the blockbuster ruling of this term -- its decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). The plaintiff in this case, a small municipal utility district in Texas, is challenging the constitutionality of a critical provision of an iconic civil rights statute -- the Voting Rights Act of 1965, most recently re-authorized by Congress in 2006 (with a Senate vote of 98-0). Questions posed by the Court's conservatives during oral argument indicate that they are poised to agree with the plaintiff and strike down the challenged portion of the Act.

    Today, Constitutional Accountability Center (CAC) released the second report in our Text and History Narrative Series, a report that could not be more relevant or timely, as it tells what is essentially the constitutional "back story" of the NAMUDNO case, and demonstrates that a ruling striking down a central portion of the Voting Rights Act would be an egregious departure from constitutional text and history. This is a story that progressives need to understand, not only to respond forcefully to such a ruling and help shine a light on the conservative activism of the Roberts Court, but also to help frame the upcoming hearings on Judge Sonia Sotomayor's nomination to the Court. A ruling that guts a core part of the Voting Rights Act would illustrate that the Court's conservatives are not willing to take the text and history of the Constitution seriously, and the need for Justices who will.

    In NAMUDNO, the proper decision on the constitutional challenge to the Voting Rights Act will turn on the correct reading of the Enforcement Clauses of the Civil War Amendments -- the 13th, 14th, and 15th Amendments -- an area in which the Court has already gone far astray. With the ruling in NAMUDNO, the Court could make one of its biggest and most harmful constitutional errors in history.

    CAC's new report, The Shield of National Protection, reveals how drastically a ruling striking down part of the Voting Rights Act would depart from the text and history of the Constitution. As The Shield demonstrates through a careful study of the text and history of the Civil War Amendments, the Reconstruction Framers intended the Enforcement Clauses to provide Congress with broad authority to guarantee, "by appropriate legislation," the fundamental rights secured by those Amendments, including the right to vote. Written against the backdrop of Dred Scott v. Sandford, the Supreme Court ruling that helped bring on the Civil War, these Amendments were ratified to change the balance of power between the States and the federal government and provide Congress with the tools to protect fundamental rights.

  • June 10, 2009
    Guest Post

    By Robert A. Schapiro, Professor of Law, Emory Law & Author of Polyphonic Federalism: Toward the Protection of Fundamental Rights

    It has been a good spring for federalism. In recent years, the doctrine of preemption has stood as a prime enemy of federalism and an obstacle to state efforts to promote health, safety and environmental protection. For that reason, President Barack Obama's May 20 memorandum limiting federal assertions of preemption comes as welcome news. That memo, along with an important Supreme Court decision in March, signals a turn away from an aggressive policy of administrative agency preemption and recognition of the value of concurrent state and federal regulatory initiatives.

    The basic principle of preemption, that state laws cannot interfere with the operation of the federal government, is an important and uncontroversial feature of our constitutional system. However, over the past 25 years, preemption has become a weapon to defeat state regulations aimed at improving health and safety, as well as state tort suits seeking to compensate victims of malfeasance. Back in 1992, the United States Supreme Court issued a fractured opinion in the Cipollone case, holding that federal regulation of cigarette labeling preempted some state tort actions against tobacco companies. In the succeeding years, the Supreme Court has found that law suits relating to seat belts, medical devices and other products must be tossed out because of federal regulation in the area.

    Some assertions of preemption have succeeded. Others have failed. The judicial doctrine has not been clear. In this confusing area, the position of the President and his administration has proved significant.

  • June 9, 2009
    Guest Post

    By Justin Levitt, Counsel, Brennan Center for Justice at New York University School of Law, which participated as amici curiae in support of the Plaintiffs-Appellants in
    Hayden v. Pataki

    In the past week, two important Voting Rights Act decisions have come under fire from conservative commentators. The Voting Rights Act can be expected to stir strong emotions, and strong emotions can be expected to distort reality. But the nature of the recent critique is fun-house-mirror material.

    The first decision, Hayden v. Pataki, involved a dissent by Judge Sotomayor, of renewed importance upon her nomination to the Supreme Court. The second decision is the new administration's first objection to VRA preclearance for a statewide legal change, and a notable change in approach after years of controversy in the DOJ's Voting Section.

  • June 9, 2009

    Tomorrow, Wednesday June 10, 2009, ACS will host a panel discussion on the nomination of Judge Sonia Sotomayor to the United States Supreme Court. Panelists from a variety of perspectives will examine a range of questions about her nomination, such as: What qualifications and experience would Judge Sotomayor bring to the court? What does Judge Sotomayor's record tell us about what kind of Justice she might be? What can we expect from the confirmation process going forward? Finally, how should we expect a justice to apply the principles in our Constitution to today's cases and controversies?

    ACS is now accepting early questions via Twitter for this event. To submit questions, include "#acs-soto" at the end of your post reply to @acslaw. You can follow ACS on Twitter at www.twitter.com/ACSLaw.

  • June 9, 2009
    Guest Post


    By Ernest A. Young, Professor of Law, Duke Law School & former Clerk to Justice David Souter (1995-96)

    As one of David Souter's most conservative former clerks, I have always winced at the Republican slogan of "no more Souters" for the Supreme Court. Most conservatives feel - rightly, in many respects - that Justice Souter disappointed their hopes to move the court in a dramatically rightward direction. Conversely, liberals take the view - again, with some justification - that Justice Souter has been a bulwark of respect for liberal Warren and Burger Court precedents and a key vote for advancing the liberal agenda in areas like gay rights and the death penalty. But this conventional wisdom misses the important sense in which Justice Souter remained a methodological conservative throughout his career. That conservative approach to the judicial task ought to inform both assessments of Justice Souter's legacy and the debate over the nomination of his successor.