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.