Voting Rights Act Gets A Reprieve

Seems to me that the Supreme Court nodded to legislative intent by not completely eviscerating Section 5 of the Voting Rights Act in a ruling handed down today by an 8-1 margin.

The case involved Section 5 of the Act, which requires voting districts that have historically engaged in discrimination to “preclear” any new voting rules changes they make with a federal court or the Department of Justice. Under today’s decision, Section 5 will remain in effect, but voting districts are allowed to “bail out” of its requirements if they can show that they have not recently engaged in race discrimination and are not likely to do so in the future.

Of course, this depends on the test that states have to pass to bail out of the requirements - if they can opt out of the provision easily, then the SCOTUS did the conservatives' bidding. Hopefully judges will impose a more strict standard.

Not Your Father's Supreme Court

Without the Internet, this level of detail almost certainly wouldn't exist, but we can now paint a pretty full picture of Judge Sonia Sotomayor's decisions on the 2nd Circuit Court, a body of evidence that can be used to form an opinion about what kind of Supreme Court Justice she will make. And it's a mixed bag. There are some hopeful signs, like her ruling in Hayden v. Pataki, where she argued that felon disenfranchisement laws do fall under the purview of the Voting Rights Act, suggesting an inclusive treatment of the franchise for all citizens. She based this on the plain reading of the statutory text of the Voting Rights Act. She dissented in the case of Pappas v. Giuliani, arguing that an anti-Semitic rant sent by the plaintiff was not enough to have him fired by the NYPD, and that he deserved a jury trial to determine if his First Amendment rights were violated. This is a powerful endorsement of the First Amendment, even in a case where the speech is distasteful. Her dissent in a strip-search case shows her defense of civil rights and the unreasonable search and seizure clause of the Fourth Amendment.

At the same time, in Jocks v. Tavernier, she strongly upheld, and convinced her Republican colleagues, police power and broad grounds for arrest in a case where a man who needed help with his truck in an emergency ended up being arrested and losing his job. And her general temperament is of a judge who hews extremely close to the law, never mind the bleatings of the right. Far from being a conquistador or leading with her race, she actually favored the law over blanket claims of discrimination the majority of the time.

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1 [...]

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

I truly value this variety of treatment of the Sotomayor record, all of which came from blogs and not the traditional media. And I think you can get a full picture of Sotomayor from this treatment. What come sup for me is the overwhelming feeling that this is a highly qualified, competent, brilliant judge whose opinion sits pretty much in the middle of mainstream legal thought. Maybe in past years, that would be enough to put her as the swing vote on the Court. In the current makeup, it puts her on the far left - because this Court has moved sharply to the right over the past 30 years, particularly on corporate issues.

Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

First we would have to chop off the Court's right wing, removing Scalia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.

Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.

Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)

Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).

To say the least, all this would represent a radical change in the Court's composition -- so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 1980! [...]

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

Cass Sunstein, who works in the Obama Administration, wrote that, and he's absolutely right. And Sotomayor does nothing to rebalance this debate. And I don't know that the President could have gone further than he did. She was generally a good pick. But that's a failure to stand up to conservative messaging. The end result for the country is that the Court shifts to the right, and nobody blinks an eye.

The Real Bush Legacy Project

For the last several weeks, and I'm sure until George Bush steps aside next week as well as in tonight's "farewell address," officials of the outgoing Administration are wearing themselves out selling an image of him as a wise, judicious, successful President with bold vision and unflappable will. 65-70% of the country think this is insane, nor do they believe it, and going on television to proudly announce that the death of 4,500 soldiers was well worth the foreign policy catastrophe created in Iraq, for example, isn't helping. The question of how history will judge these individuals can at this point only be altered by whether or not they are prosecuted for the crimes they willingly committed.

I'm wondering if they even need to bother with all this. The Bush regime will have a legacy, and not just the expansion of executive power or the model for future Presidents on how to break the law repeatedly, treat Congress with nothing but scorn, and get away with it. No, there's an even more tangible legacy than that, which will play out every day for the next couple decades at 1 First Street NE in Washington:

The Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the exclusionary rule, which requires the suppression of some evidence obtained through police misconduct, and suggested that the court’s commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found.

“To trigger the exclusionary rule,” Chief Justice Roberts wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The case itself is noteworthy. Bernie Herring had an adversarial history with a cop in his Alabama town. His truck was impounded and he went to the sheriff's office to pick it up. The cop ran a check for outstanding warrants and found what he thought to be one, he arrested Herring. The officers detained Herring, and found a gun and traces of methamphetamines on him. Minutes later, the officers discovered that the arrest warrant was faulty. Nevertheless, he was tried for drug possession and sentenced to 27 months(!).

And the Supreme Court now has ruled that the evidence, gained through what amounts to a warrantless search, is admissable.

The decision in the case, Herring v. United States, No. 07-513, may have broad consequences, said Craig M. Bradley, a law professor at Indiana University.

“It may well be,” Professor Bradley said, “that courts will take this as a green light to ignore police negligence all over the place.”

Chief Justice Roberts, who was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said the exclusionary rule was unlikely to deter isolated careless record keeping and should be reserved for “deliberate, reckless or grossly negligent conduct, or in some circumstances recurring systemic negligence.”

Of course, these 5 will decide what ought to be considered negligent conduct for the near future. And that line will get moved, and moved, and moved. Scott Lemieux has a lot more.

We'll be dealing with reactionaries on the Supreme Court for a long time, two of them placed there by this President. Civil liberties, women's rights, consumer protection, and a host of other issues will be at stake. Among the next up is the Voting Rights Act.

The Supreme Court agreed yesterday to examine whether a central component of landmark civil rights legislation enacted to protect minority voters is still needed in a nation that has elected an African American president.

The court will decide the constitutionality of a provision of the Voting Rights Act of 1965 that seeks to protect minority voting rights by requiring a broad set of states and jurisdictions where discrimination was once routine to receive federal approval before altering any of their voting procedures.

The Supreme Court has upheld the requirement in the past, saying the intrusion on state sovereignty is warranted to protect voting rights and eliminate discrimination against minorities. But challengers say it ignores the reality of modern America and "consigns broad swaths of the nation to apparently perpetual federal receivership based on 40-year-old evidence."

This comes conveniently before the 2010 Census and the next round of reapportionment and redistricting in the states.

That right-wing bloc on the Court is relatively young, incidentally. Weep not for George W. Bush. He's got a legacy. Not content just to screw us for eight years, the pain will be felt for decades.