Former U.S. Supreme Court Justice Criticizes Its Decision on the Voting Rights Act of 2006

John Paul Stevens
John Paul Stevens


John Paul Stevens, who served as an Associate Justice of the U.S. Supreme Court for nearly 35 years (1975-2010), has issued a stinging rebuke to its recent decision invalidating an important provision of the Voting Rights Act of 2006.

Stevens’ remarks came in his review of a book about the history of that statute: Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.[1]

As discussed in a prior post, the court on June 25th in an opinion by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held unconstitutional the Act’s formula that determined which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. The Court concluded that the burdens of such pre-clearance on the jurisdictions covered by the formula were not justified by current needs and, therefore, violated basic principles of equal state sovereignty or autonomy over voting.[2]

First, Stevens disputed the major legal premise of the Roberts’ opinion. Instead, Stevens agreed with Justice Ruth Bader Ginsburg’s dissenting opinion in the case that “the principle [of equal sovereignty] “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Emphasis in Stevens’ book review.)

Second and more importantly, Stevens strenuously objected to the Court’s not respecting the virtually unanimous congressional support for the 2006 re-authorization of the Voting Rights Act after “thorough evidentiary hearings.” Said Stevens,

  • “The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the [Act].”

Stevens found support for this conclusion in an unlikely source–the dissenting opinion of Justice Antonin Scalia in the case that invalidated the federal Defense of Marriage Act.[3] According to Justice Scalia,

  • “This [DOMA] case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.”

[1] The Stevens book review is also discussed in The Atlantic and Politico.

[2]  Earlier posts provided important background for the Supreme Court’s decision.

[3] The DOMA case is United States v. Windsor, No. 12-307 (June 26, 2013).


U.S. Supreme Court Decides that Foreign Sovereign Immunities Act Does Not Apply to Former Foreign Government Official

As discussed in a prior post, the U.S. Foreign Sovereign Immunities Act (FSIA) codifies the conditions for a U.S. court’s deciding that a “foreign state” as defined in that statute shall be granted immunity from a lawsuit in the U.S. courts.

Somali plaintiffs

The issue of whether the FSIA applied to individuals who had been officials of a foreign state was raised in a case brought by four Somalis against former Somali General Mohamed Ali Samantar for money damages under two U.S. statutes–the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).

Mohamed Ali Samantar

The complaint alleged that Samantar aided and abetted, and had command responsibility for, extrajudicial killing; arbitrary detention; torture; cruel, inhuman or degrading treatment; crimes against humanity; and war crimes in Somalia from 1969 through 1991.[1]

U.S. District Judge Leonie Brinkema of the Eastern District of Virginia[2] in August 2007 dismissed the case on the ground that Samantar was an “agency or instrumentality of” the state of Somalia and, therefore, entitled to immunity under FSIA (2007 U.S. Dist. LEXIS 56227). This judgment was reversed in January 2009 by the U.S. Court of Appeals for the Fourth Circuit (552 F.3d 371) on the ground that the FSIA did not cover individuals, after which the U.S. Supreme Court agreed to review the case.

In Yousuf v. Samantar, 560 U.S.__, 130 S. Ct. 2278, 176 L.Ed.2d 1047 (2010), the Supreme Court decided, 9 to 0, that the FSIA did not apply to government officials and that the immunity of such individuals was a matter of federal common law.[3]

In an opinion for the Supreme Court by Justice Stevens that was joined by Chief Justice Roberts and five Associate Justices (Kennedy, Ginsburg, Breyer, Alito and Sotomayor), Justice Stevens said there was nothing in the FSIA suggesting that “foreign state” should be read to include an official acting on behalf of that state. Indeed, according to the opinion, FSIA specifies that a foreign state “includes a political subdivision . . . or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Moreover, the statutory “agency or instrumentality” definition militates against its covering individuals.

The Court’s opinion also stated that FSIA’s history and purposes do not support an argument that the Act governs individual immunity claims. There is little reason to presume, said the Court, that when Congress codified state immunity, it intended to codify, sub silentio, official immunity. [4]

The Supreme Court remanded the case to the district court for its determination in the first instance as to whether Samantar was entitled to any common law immunity.

Upon remand, as will be discussed in a subsequent post, the district court decided that Samantar was not entitled to common law immunity and awarded the plaintiffs compensatory and punitive damages of $21 million.

[1]  This case was supported by the Center for Justice and Accountability, a human rights NGO based in San Francisco, California.

[2]  Judge Brinkema presided over the criminal trial of Zacarias Moussaoui, who was convicted for conspiring to kill U.S. citizens in the 9/11 attacks. I appeared before her in another case, one involving Scientology.

[3] According to John B. Bellinger, III, a former Legal Adviser to the U.S. State Department, this Supreme Court decision vindicated the position of the Department’s Office of the Legal Adviser, which had long argued that the immunities of current and former foreign government officials in U.S. courts are defined by federal common law and customary international law as articulated by the Executive Branch, rather than by FSIA. But, says Bellinger, the decision will place a burden on that Office, which will now be asked to submit its views on the potential immunity of every foreign government official sued in the U.S.

[4]  Justices Alito, Thomas and Scalia each filed concurring opinions to say that the Court’s references to FSIA’s   legislative history were unnecessary.