American Culture

Roberts and the Voting Rights Act: what the hell is “equal sovereignty”?

I’m not a lawyer—there seem to be enough lawyers already. So when the Supreme Court hands down a big ruling, I naturally turn to lawyers to interpret these for me—what sort of impact will it have on the world, that sort of thing. But it’s also interesting, and often useful, to know why and how the judges reached a certain conclusion. So we’ve all got some people we look to for these things, if we’re sufficiently interested. Usually the smart guys over at Lawyers, Guns and Money do a pretty good job. And occasionally I look at what the super-smart former-Chicago-School-maven-now-turned-apostate and former judge Richard Posner over at Slate has to say. And he has some very interesting things to say about the ruling the Roberts Court handed down overturning a portion of the Voting Rights Act.

We’ve already seen some of the results of this action—six states previously subject to Section 3 of Article IV of the Act and no longer are have already rushed to adopt policies that would likely have been deemed in need of corrective action under rules that applied only recently. Why anyone would be surprised by this I don’t know—it strikes me as being drearily predictable. But I have no doubt that at some point we’ll get some stout denials that the ruling didn’t intend to disenfranchise potential (or actual) voters—although we all know that’s coming.

That’s not what’s of concern here. It’s the logic of the decision that I find intriguing, and full of potential mischief. Here’s Posner, cutting to the chase:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that…there is no such principle.

Well, that’s interesting. Posner then goes on to explain why this principle is a fiction, but how Roberts very cleverly got it into action:

But the real key to “stealth” jurisprudence is patient, crafty incrementalism (no conservative monopoly on that strategy, of course). It’s a strategy illustrated by Shelby’s predecessor, the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby. That was a case in which Chief Justice Roberts, again writing for the majority, criticized the same part of the Voting Rights Act, and invoked the same imaginary doctrine of “equal sovereignty,” yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step.

So that’s how it’s done. Sneaky. I imagine we’ll be hearing more about this. What concerns me is what the “principle” really means for the future, and Posner, distracted by other concerns, doesn’t really address this. But it’s an interesting issue. Does it mean that states shouldn’t be disadvantaged by the federal government relative to other states if there’s a federal law involved? Or federal spending? Or what? So, we live in a world where some states get back more money from the federal government than those states pay in federal taxes—Mississippi, for example, or pretty much any state from the old confederacy. Some states subsidize other states, in other words. What happens if one of the states providing such generous subsidies–New Jersey, say–to other states who actually hate their guts decides it’s had enough. Can it claim under the “equal sovereignty” concept—upon which the Supreme Court has, remember, just decided a major case—that’s it’s being disadvantaged by having to support a bunch of crackers who can’t pay their bills?

Or, let’s take sports teams. How about, say, basketball? Some sports markets are much more populous and richer than other sports markets. Well, that wouldn’t matter in and of itself. But the federal government (in addition to the sates) usually provides a variety of tax breaks for the construction of new stadiums (at inflated prices that virtually never pay their own way)—generally in the form of the deductibility of interest associated with the massive borrowings that always seems to accompany these boondoggles. (Unless it’s Gilette Stadium where the New England Patriots play, where owner Robert Kraft paid for the entire cost of construction of a new stadium by himself.) Can the State of Washington, where for several years the city of Seattle been trying to get another NBA team, claim that it’s being disadvantaged relative to the State of New York? This is basketball, but it applies to all sports where stadiums are built in part with public borrowings. Especially baseball, since baseball continues to be given an anti-trust exemption by the US government (Congress, to be precise)? Since 1922, in fact.

What else? Pubic education—to the extent that it hasn’t been privatized yet? Some states are richer than others, and in the US schools are generally funded by local property taxes, so you can guess what happens. Richer states tend to have better public education systems. Well, that’s always been true. But now all states have to comply with a whole raft of federal laws and regulations (particularly the draconian and pointless No Child Left Behind Act). Can some poor state—say, a literally poor state that’s already on the federal gravy train, like South Carolina—decide it’s still not getting enough from the federal trough, and try to get more under “equal sovereignty?” This would never have occurred to me before now, but I bet there’s some lawyer trying to think up a way to get this rolling.

I suspect that, like Kelo, this ruling will eventually come to be seen as a really bad idea. I also suspect there may be a considerable amount of mischief that can get generated from this doctrine of “equal sovereignty” once people put their heads together—whatever the hell it means. I hope someone can explain this all to me. Even though, according to Posner, it doesn’t really exist. As I said, I’m not a lawyer.

The above stamp was issued by the US Postal Service as part of the Constitutional Bicentennial in 1989.

12 replies »

  1. I have become a convert to state’s rights. I want to let Miss et al build exactly the sort of place they want and let’s see how attractive they are to business and populace.

  2. Well you certainly wouldn’t want to encourage an environment were some states are more sovereign that others — with apologies to Mr. Orwell.

  3. Well, that’s sort of the issue, isn’t it–states are unequal. Some are richer than others. Some have more natural resources. So are we going to try to equalize some things (voting rights policies) but not others? So I’m back to being confused. Just what does this term mean? I bet no one has the faintest idea, except Roberts himself. Grab the popcorn!

    • Well I was attempting to be sarcastic but now you have gone and made me give it some serious thought — which I actually did before but now I will give a serious answer.

      Looking at the two comments in juxtaposition to your concerns I think the term is overloaded with potential for confusion that will keep lawyers rich for generations to come.

      My first take on the term, in context, was in line with Otherwise’s and Jim Booth’s. Robert’s seems to be trying to set the stage, rather cleverly as you point out, to make the argument for states rights; to take the stance that the Federal Gov’ment shouldn’t be telling the sovereign states what to or what not to do. Or, more to the points, each state has an equal right to create their own brand of hell-hole and to make asses out of themselves if that is what they think is the thing to do. A libertarian liberty kind of thing at the state level.

      You seem to be concerned it will go in the opposite direction arguing that the term will be used (and was intended to be?) to make a redistribution of wealth argument at the state level. I have to believe if this is what happens it would be an unintended consequence on the part of Roberts but not out of the realm of possibility.

      So Robert’s stealth attempt to legislate from the bench (didn’t he say he was against that?) has created a constitutional principle (out of thin air apparently) that can be used to support totally opposite ideological principles, not to mention laws, practices, etc. Can’t imagine why that would confuse anyone. But I have seen a similar dichotomy on the DOMA ruling: it supports states’ rights, it federalizes same sex marriage.

      There is a principle somewhere that you do not make money solving problems you make money perpetuating them. I do not see lawyers getting any poorer, nor pundits of various ilks.

  4. Two points, Wuf:

    1) I’m currently a resident of the above mentioned Confederacy (born and bred) – what I suspect Roberts is speaking about in code here by using that “equal sovereignty” term is the much older and known to be discredited term “states rights.” These guys never quit – which is why, at least in part, Southern friends of mine like Otherwise and Sam Smith live elsewhere. I’m watching what my “legislature” (if such a term can be accurately applied to a bunch of rubber stamping yahoos in thrall to the Randian/Calhounian psychoses of a billionaire puppet master like Art Pope) is doing to the social safety net and public education and I find myself looking at real estate in areas more congenial to humane treatment of one’s fellows. The antebellum South was a shit hole for all but a few – and these idiots want to restore the antebellum South.

    2) The SCOTUS behavior in these rulings is of a piece with the behavior of the Right in general over the last 20 years. The strategy, post 90’s failures by Bush the First and Newt to impose their psychotic vision (see Art Pope above) on the entire country via DC was to take a “state by state” approach. And it’s working – not just in the Confederacy but in states all over the country. It’s a thoroughly evil, repressive plan for putting people “back in their places” and applies not just to people of color but to anyone whom the policies of FDR and LBJ helped escape poverty and join the middle class (a group they have every intention of squeezing down to a minute size). It’s the imposition of the plantation system any and everywhere. And it’s well coordinated and systematic.

  5. Jim, I feel you pain. I used to think these things went in cycles, and the cycle would eventually turn. Now I’m not so sure.

    Fnay–I’m not worried aoubt a reditsribution of wealth. That’s been taking place for years, and we’ve commented on it before–check out the link I’ve included in the post. One-third of the states basically support the other two-thirds, and the irony that most of that one-third are blue states, and most of the two-thirds are red states, is not lost on me. What I think is potentially interesting is if some of the giver sates start getting fed up–can they use the equal sovereignty arguement to have an impact on this pattern of federal spending? I have no idea, since, as I said, I still have no idea what “equal sovereignty” means. I imagine this concept being used to support contradrictory rulings will eventualy get evened out over time. I’m just curious how this will go.

    • What’s interesting to me about the “equal sovereignty” doctrine is how utterly it was ignored by most of the conservative dissenters in the DOMA case, just the next day. Justice Scalia rails against the Court for its anti-democratic power grab, never bothering to grapple with the notion that each state should be entitled to have its sovereign marriage policies respected by the federal government.

  6. Jim–what, you want consistency here? Pfft.

    Seriously, I suspect you’re right–there were a number of apparent inconsistencies in the final several days of the court’s rulings, particularly DOMA versus VRA. One is almost tempted to think that these guys have gay friends, but no black friends. And by the logic of this brand new standard, which I’m only guessing at now because I still have no idea what it means, I’m betting that they’ll become even more glaring over time.

  7. “Equal sovereignty” seems to be the argument put forward by John C. Calhoun in the “Fort Hill Address” in 1831. That Roberts would reintroduce it by measure into Supreme Court opinions seems to be a stealth attempt to change the results of the Civil War.

    Two references:
    The New Republic: Why the GOP is and will continue to be the party of white people

    The Fort Hill Address: On The Relations of The States and Federal Government:

    • Ah, interesting. This actually makes a perverted kind of sense. Thanks for the links.