A prior post proposed a new federal voting rights act that would (a) make every U.S. citizen (including children and felons) eligible to vote; (b) require every citizen to vote; (c) forbid any racial discrimination in voting; and (d) simplify voting laws and procedure. Left unadressed was the constitutionality of such a statute.
Relevant Constitutional Law
Such a constitutional analysis is suggested in a recent article by Jesse Wegman, an experienced lawyer and journalist and a member of the New York Times’ Editorial Board, and this post draws from his article.
We start with the U.S. Constitution’s Elections Clause (Article I, Section 4). It provides: ” The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
According to the U.S. Supreme Court in various cases, the words “Times, Places and Manner” in this Clause are “comprehensive words,” which “embrace authority to provide a comprehensive code for congressional elections.” The Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only as far as Congress declines to pre-empt state legislative choices.” Indeed, the congressional power under the Clause “is paramount and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no further, the regulations effected supersede those of the State which are inconsistent therewith.”
On the other hand, the Supreme Court has held in various cases, the Clause does not empower Congress to regulate who may vote in congressional elections. Instead, Article I, section 2(1) of the Constitution states, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” (Emphasis added.) The same criteria for senatorial elections are set forth in the Seventeenth Amendment to the Constitution.
These constitutional provisions were the bases for the Supreme Court’s decision, 7 to 2, on June 17, 2013, in Arizona v. Inter Tribal Council of Arizona to invalidate an Arizona statute that required voter-registration officials to reject any application for registration that did not include documentary evidence of U.S. citizenship even though a Federal Form for such registration under the National Voter Registration Act that states are required to “accept and use” does not require such documentary evidence.
The opinion for the Court was written by Justice Antonin Scalia and was joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Anthony Kennedy joined the opinion in part and filed his own concurring opinion.  It was from Justice Scalia’s opinion that the foregoing summary of prior Supreme Court precedents was drawn.
Application of the Constitutional Law to the Proposed Federal Voting Rights Act
Clearly the proposed statute’s making every U.S. citizen, including children and felons, eligible to vote would be unconstitutional. It could be rescued on the federal level only by an amendment to the U.S. Constitution. Individual states, however, could enact such laws.
The same conclusion would probably also apply to the proposal that every U.S. citizen be required to vote.
However, the various suggestions in the prior post for simplifying voting laws and procedure should be constitutional as would the ban on racial discrimination in voting.
Furthermore, I join Mr. Wegman in concluding that the Elections Clause could be the constitutional basis for “[s]trong federal laws . . . [to] help ensure voting fairness to all voters, especially when a state law appears neutral but has serious partisan or racially discriminatory effects. For instance, a state’s voter ID law might put up hurdles for poor or young voters, who may be disproportionately minority and Democratic, or for elderly voters, who lean Republican.” In addition, even though the Elections Clause “allows Congress to set rules only for federal elections, . . . those laws almost always guide state election practices.”
 Associate Justices Clarence Thomas and Samuel Alito filed dissenting opinions in Arizona v. Holder.
 Only eight days later, Justice Scalia was in the majority in Shelby County v. Holder that, 5 to 4, invalidated an important provision of the federal Voting Rights Act. This case has been discussed in a prior post while another post summarized the criticism of that decision by former Supreme Court Justice John Paul Stevens.
As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.
That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine 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. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”
Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.
The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”
The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.
She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.
As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.
Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”
In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”
The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.
Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.
On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS), which provides that the U.S. district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].”
The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.
The Court, however, differed, 5 to 4, on the rationale for this conclusion.
The Majority’s Rationale
The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”
This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:
The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”
In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”
Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.
Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.
The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . . onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”
Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”
Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . . [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.
The Minority’s Rationale
The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.
Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.
Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”
On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.
Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer, is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”
With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”
The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.
I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.
Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.
I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights. The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.
Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.
Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.
 Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.
 The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.
 The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”
 For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.
On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:
“Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”
As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision, a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.
According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“
Here are just a couple of examples of that attitude from the argument.
Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:
“Do you know how many submissions there were for preclearance to the Attorney General in 2005?” (Roberts: “3700.”)
“Do you know how many objections the Attorney General lodged?” (Verrilli: “There was one in that year.”)
“[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
“[W]hat [state] has the best, where African American turnout actually exceeds white turnout?” (Roberts: “Mississippi.”)
“Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
“[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” (Verrilli: “It is not.”)
Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.
Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”
Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.
According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”
I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.
These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)
Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:
“This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
“The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
“And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . . unless a court can say it does not comport with the Constitution.
“You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . . a concern that this is not the kind of a question you can leave to Congress.
“There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”
These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.
Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”
What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional. Others agree with me that the provision should be upheld.
I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.
A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.
The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.
 This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.
 Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.
E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra; Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.
On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.  That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Department of Justice for any changes in their election laws.
Prior posts have reviewed the original Voting Rights Act of 1965 and its extension in the Voting Rights Act of 2006. Before we discuss the recent Supreme court argument, we now look at another of its predicates: the previous Supreme Court decision regarding the Voting Rights Act of 2006: Northwest Austin Municipal Utility District No. One v. Holder. 
Opinion of the Court
The opinion for the Court was written by Chief Justice John Roberts, who was joined by seven Associate Justices (Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer and Alito).
The Roberts opinion interpreted the statute as reauthorized in 2006 to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek bailout, thus avoiding the need to resolve whether the 25-year reauthorization in 2006 was constitutional.
As a result, the rest of the opinion’s extensive discussion of constitutional concerns over the 2006 statute technically are dicta, but the Supreme court’s dicta are obviously important for the lower federal courts and legal observers to see which way the winds are blowing.
The opinion paid at least verbal homage to the longstanding legal principles that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called on to perform’” and that “Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.’” Moreover, Roberts emphasized that “the Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”
Roberts acknowledged that in 1965 when the original statute was passed, “unconstitutional discrimination was rampant and the ‘registration of voting-age whites ran roughly 50 percentage points or more ahead’ of black registration in many covered States” and that the Court had upheld the constitutionality of the original statute and its extensions through 2006.
However, Roberts left the distinct impression that at least he thought that since 2006 the work of abolishing racial discrimination in voting was over.
He said, “Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Moreover, “many of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [original Voting Rights Act] have been eliminated.” The “registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities.”
“These improvements are no doubt due,” the opinion stated, “in significant part to the [original] Voting Rights Act itself [as extended through 2006] , and stand as a monument to its success.”
Almost offhandedly the opinion conceded, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.”
And the opinion did say that “Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined ‘document[ed] contemporary racial discrimination in covered states.’ The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes’ by ‘quietly but effectively deterring discriminatory changes.’”
But Roberts did not refer to, quote or discuss the extensive congressional findings in the Voting Rights Act itself that fighting voter racial discrimination was not finished.
The Court’s opinion identified two “serious . . . questions” about section 5’s continued constitutionality, namely, whether the “current burdens” it imposes are “justified by current needs,” and whether its “disparate geographic coverage is sufficiently related to the problem that it targets.”
These burdens, said the opinion, were the “federal intrusion into sensitive areas of state and local policymaking.” Section 5, it continued, “goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, and in particular to every political subdivision in a covered State, no matter how small.”
The second problem identified by Roberts stemmed from the statue’s differentiation “between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” Such “distinctions can be justified in some cases. But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”
Opinion of Justice Clarence Thomas
Associate Justice Clarence Thomas filed a separate opinion in this case, concurring in the judgment in part and dissenting in part.
Thomas said, “the Court’s statutory decision does not provide appellant with full relief” and, therefore, he concludes, “it is inappropriate to apply the constitutional avoidance doctrine in this case. I would therefore decide the constitutional issue presented and hold that §5 exceeds Congress’ power to enforce the Fifteenth Amendment.” The latter conclusion was based upon his assertion that there was a “lack of current evidence of intentional discrimination with respect to voting.”
 The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.
 Another predicate to the recent Supreme court argument will be discussed in a future post: the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit that is the subject of the recent argument in the Supreme Court (Shelby County, Alabama v. Holder).
As has been widely reported, the U.S. Supreme Court on June 28, 2012, decided, 5-4, that the Affordable Care Act (ACA) was constitutional under Congress’ constitutional power in Article I, Section 8(1) to “lay and collect taxes.” The Court’s Chief Justice and four of the Court’s Associate Justices also said in separate opinions that this statute was not constitutional under Congress’ constitutional power in Article I, Section 8(3) to “regulate commerce . . . among the several States.” The other four Associate Justices came to the opposite conclusion that the statute was constitutional under this provision.
This post will review what was said about the interstate commerce clause in the four opinions in the case and then analyze the status of that constitutional provision after this decision.
The Supreme Court’s Opinions on the Interstate Commerce Power
Chief Justice John Roberts’ opinion said that the Affordable Care Act was not constitutional under the interstate commerce clause. The same conclusion was reached in the joint dissenting opinion of Associate Justices Kennedy, Scalia, Thomas and Alito, and Associate Justice Thomas added a separate dissent to express an additional reason why he thinks the statute was invalid under this clause.
The opposite result was reached in the opinion by Associate Justice Ginsburg that was joined by Associate Justices Breyer, Sotomayor and Kagan.
First, Roberts gave a fair summary of the existing law on the Constitution’s interstate commerce provision. He said, “Our precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’ The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.” For this summary, Roberts cited Wickard v. Filburn, 317 U. S. 111 (1942),which previously had been criticized by Justice Scalia, and Perez v. United States, 402 U. S. 146 (1971). (Roberts Slip Op. at 4-5.)
Roberts emphasized this concession when he said, “[I]t is now well established [by the Supreme Court’s prior cases] that Congress has broad authority under the Clause. We have recognized, for example, that ‘[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,’ but extends to activities that ‘have a substantial effect on interstate commerce.'” Moreover, he said, “Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.” (Id. at 17-18.)For this last point he again cited the Wickard case. (Id.)
Nevertheless, Roberts continued, “As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.'” (Id. at 19.) The Affordable Care Act, however, according to Roberts, would require people to do something, i.e., to buy health insurance. Such a requirement, said Roberts, distinguished all of the prior Supreme Court precedents and, therefore, invalidated the statute. (Id. at 18-24.)
2. Associate Justices Kennedy, Scalia, Thomas and Alito’s Dissenting Opinion.
Although the joint dissenting opinion did not specifically endorse Roberts’ interpretation and conclusion, it implicitly did so. It did not attempt to overrule any of the Supreme Court’s precedents on the interstate commerce clause. Instead, it said the Wikard case, which Scalia previously had criticized, “held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated” and “always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. ” (Joint Dissent Slip. Op. at 2-3.) But Wickard and other precedents, according to the dissenters, “involved commercial activity.” The ACA, on the other hand, attempted to regulate economic inactivity, i.e., the failure to buy health insurance, and, therefore, was unconstitutional under the interstate commerce clause. (Id. at 2-12.)
Justice Thomas was a co-author of this joint dissent and, therefore, agreed with all of its contents. His separate dissenting opinion was issued to reiterate his previously expressed view that the Court’s “‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” (Thomas Slip Op.)
3. Associate Justice Ginsburg’s Opinion.
Justice Ginsburg started with her summary of the Supreme Court’s precedents on the interstate commerce clause. She said, “Consistent with the Framers’ intent, we [Supreme Court Justices] have repeatedly emphasized that Congress’ authority under the Commerce Clause is dependent upon ‘practical’ considerations, including ‘actual experience.'” The Court has recognized that Congress has the “power to regulate economic activities ‘that substantially affect interstate commerce'” and regulate “local activities that, viewed in the aggregate, have a substantial impact on interstate commerce.” (Ginsburg Slip Op. at 14-15.)
She added from the Court’s precedents regarding the impact of the Constitution’s Fifth Amendment’s “due process” and implied equal protection clause that the Court repeatedly had said that it owed “a large measure of respect to Congress when it frames and enacts economic and social legislation” and that when “appraising such legislation, we ask only (1) whether Congress had a ‘rational basis’ for concluding that the regulated activity substantially affects interstate commerce, and (2) whether there is a ‘reasonable connection between the regulatory means selected and the asserted ends.'” In addition, Ginsburg stated, “In answering these questions, we presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.” (Id. at 15-16.)
Ginsburg then criticized Roberts’ supposed distinction between the Court’s precedents in this area and the Affordable Care Act. That distinction, she said, had no support in those precedents, and his minor premise–the Affordable Care Act required some people to buy a product (health care) they did not want– was erroneous. (Id. at 18-31.)
The Interstate Commerce Power After the Supreme Court’s Decision
Before the Supreme Court issued its decision in this case, I was concerned that the shrill cries of columnist George Will and two judges on the Court of Appeals for the District of Columbia Circuit that called for the Supreme Court to overrule 75 years of Supreme Court precedents on the scope of the interstate commerce clause would resonate with the five so-called conservative Justices of the Supreme Court. My worries were exacerbated by the initial reports that those five Justices had concluded that the Affordable Care Act did not satisfy their view of what that clause allowed.
When I had read the Court’s opinions, however, I discovered that eight of the nine Justice had not overruled any of those Supreme Court precedents and indeed essentially had endorsed them. Only Justice Thomas called for overruling one subset of those precedents, i.e., those allowing Congress to adopt laws under the interstate commerce clause if there were substantial effects on that commerce from local activities.
Therefore, all of those cases are still good law on the expansive nature of the federal power over such commerce. As an advocate for strong federal powers for the U.S. in the 21st century, I am pleased with this result.
As noted above, five of the current nine Justices believe that all the other Supreme Court precedents over at least the last 75 years can legitimately be distinguished from this case over the validity of the Affordable Care Act on the ground that all of the precedents involved regulation of economic activity whereas this current case involved attempted regulation of economic inactivity. Is this a legitimate distinction?
Justice Ginsburg and three of her colleagues did not think so as previously discussed. I leave it to constitutional scholars to analyze the validity of this purported distinction.
There is also a serious question as to whether Roberts’ opinion on the interstate commerce clause (when coupled with the similar discussion in the joint dissent) together constitute a binding decision of the Court under the doctrine of stare decisis.
First, there is no official “Opinion of the Court” on the interstate commerce issue that could be considered as the basis for stare decisis. Roberts’ opinion on this issue is his alone. The similar opinion of the other four Justices (Kennedy, Scalia, Thomas and Alito) is a dissenting opinion that does not express concurrence in Roberts’ opinion on the issue.
This careful reading of the opinions, however, may be overcome by section III-C of the Roberts’ opinion on the taxing power issue that states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” This section of the Roberts’ opinion is concurred in by four other Justices (Ginsburg, Breyer, Sotomayor and Kagan), but they disagreed with this interpretation of the commerce clause. (Roberts Slip Op. at 41-42; Ginsburg Slip Op. at 2-36.) And Justice Thomas in his own dissent said, “The joint dissent and Chief Justice Roberts correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.” Perhaps these oddities are merely evidences of plain sloppiness in finishing the opinions in this case.
Second and more important, the opinions of Roberts and the four dissenters on the interstate commerce issue might be regarded as dicta and, therefore, not binding on the Court in subsequent cases or on lower federal courts. Since the Affordable Care Act was held to be constitutional on a different ground (the power to tax), then all of the discussion about the interstate commerce clause was not necessary to the decision and, therefore, dicta.
Justice Ginsburg was alluding to this principle in her opinion when she said that Roberts’ conclusion that the statute was constitutional under the taxing power should have meant there was “no reason to undertake a Commerce Clause analysis that is not outcome determinative.” (Ginsburg Slip. Op. at 37 n.2.)
Roberts responded to this argument in his opinion: “It is only because the Commerce Clause does not authorize such a command [to buy health insurance] that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that . . . [the relevant statutory provision] can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” (Roberts Slip Op. at 44-45.)
All of this discussion might be regarded as hyper-technical because so long as the Court’s composition remains the same, a majority (five Justices) is clearly on record on the limitation on the commerce clause power expressed in their opinions.
There is also disagreement on the significance of the new limitation on the interstate commerce power announced by Roberts and the four dissenters. Justice Ginsburg’s opinion says that Roberts ‘ opinion on the issue exhibits “scant sense and is stunningly retrogressive” and a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” (Ginsburg Slip Op. at 2-3, 37.) This view was echoed by George Will and other commentators who said the reading of the commerce clause was an ultimate victory for libertarians and conservatives. However, one of those conservatives–John Yoo— said this reading of the clause “does not put any other federal law in jeopardy and is undermined by its ruling on the tax power” and in fact is “a constitutional road map for architects of the next great expansion of the welfare state.”
I am an agnostic on the question of the significance of the new limitation. I think Justice Ginsburg overstates the fear of horrible consequences because at least four of the Justices who articulated the new limitation also endorsed the 75 years of precedents expanding the scope of the interstate commerce power. Moreover, Chief Justice Roberts in his opinion in the Citizens United case articulated his concept of stare decisis that makes it unlikely that he would countenance such a large-scale overruling of precedents, in my opinion. A lot depends upon who wins the 2012 presidential election and who will be appointed to the Court over the next four years.
It is interesting and somewhat ironic that while the Supreme Court was struggling with legal arguments that would restrict the power of the U.S. federal government to respond to national economic problems, European countries were struggling with how to create a central power or authority to rescue the European economy and currency from imminent collapse.
A prior post discussed stare decisis in the context of recent suggestions that the U.S. Supreme Court should establish a new and different interpretation of the constitutional limits on federal and state regulation of economic activities. Another post summarized arguments why there should be no such changes and why the Affordable Care Act was constitutional.
Here we examine in greater detail the U.S. doctrine of stare decisisas it relates to the forthcoming Supreme Court decision on the Affordable Care Act.
The Doctrine of Stare Decisis
As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is . . . the bedrock principle of the rule of law, to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
I would add that the doctrine also assists in providing equal treatment for those similarly situated. If, for example, John Doe is held liable to Susan Smith for doing something to her, then Richard Roe should be held liable for doing the same thing to Janet Jones. This is a very important part of the rule of law.
Indeed, Chief Justice Roberts in a concurring opinion in the infamous Citizens United v. Federal Election Commission case from 2010, said, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Part of what law students learn in law school and what practicing lawyers do in their lawyerly work is how to identify and articulate the holdings of cases and how to make legitimate distinctions between cases. That is all part of the doctrine of stare decisis.
Exceptions to the Doctrine of Stare Decisis
As Chief Justice John Roberts, however, said in his concurring opinion in Citizens United, stare decisis is not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Yet the Supreme Court has “long recognized that departures from precedent are inappropriate in the absence of a ‘special justification.'”
The Court in considering a potential departure from stare decisis must first conclude that a prior decision or decisions were erroneous. Roberts added, “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”
Quoting former Supreme court Associate Justice Robert H. Jackson (1941-1954), Roberts said that such a balancing requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Roberts went on, “in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.”
One example of a justified overruling of a prior decision is when “the precedent under consideration itself departed from the Court’s [prior] jurisprudence.” Another example, said Roberts, is when ” adherence to a precedent actually impedes the stable and orderly adjudication of future cases. . . such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”
In the Citizens United concurring opinion, Roberts specifically cited three instances of the Supreme Court’s properly departing from stare decisis and overruling prior cases: (1) Brown v. Board of Education‘s overruling of Plessy v. Ferguson and holding school racial segregation unconstitutional; (2) Katz v. United States’ overruling of Olmstead v. United States and holding wiretapping of criminal suspects without a search warrant unconstitutional; and (3) the previously mentioned West Coast Hotel Co. v. Parrish‘s overruling of Adkins v. Children’s Hospital of D.C. and holding minimum wage laws to be constitutional.
Given the valid and important reasons behind the doctrine of stare decisis and the weighty burden that should be met by any court’s overruling prior precedents, even as expressed by Chief Justice Roberts, the Supreme Court, in my opinion, should adhere to the 75-year deep body of law interpreting the Constitutional limits on economic regulation and uphold the constitutionality of the Affordable Care Act.
This apparently was the view of the Obama Administration at the time of the adoption of the Act and at the start of the various lawsuits challenging that statute. As a New York Timesarticle today states, “Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.”
If a divided Supreme Court this week does change the interpretation of the constitutional limits on congressional power to regulate interstate commerce, it will indeed be radical.
In reaction to such a possibility, Jonathan Turley, Professor at George Washington University Law School, has suggested that the number of Supreme Court justices be increased from its current nine to 19. In his opinion, “Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.”
Turley points out that the number of justices is not set in our Constitution and that nine was happenstance. He also says many developed countries have larger top courts: Germany (16), Japan (15), United Kingdom (12) and Israel (15). France (124) and Spain (74) have significantly more judges on their top courts, but those courts have structural differences from ours. All of these courts, however, “eliminate the [U.S.] concentration-of-power problem.” Turley suggests 19 for the U.S. as the average size of our federal appellate courts.
Turley’s suggestion echoes my prior criticism of our Constitution as antiquated and “imbecilic” in other respects, including life tenure for federal judges.
By the end of June the U.S. Supreme Court should issue its decisions on the constitutionality of the federal Affordable Health Care Act and the Arizona immigration law. These cases involve important issues requiring the interpretation of the U.S. Constitution.
These cases and recent commentaries by Supreme Court Justice Antonin Scalia, columnist George Will, two judges on the U.S. Court of Appeals for the D.C. Circuit and a law professor reveal another important issue of legitimate federal power that is bubbling below the surface: what should be the constitutional standard for review of federal and state regulation of economic activities under the Fifth and Fourteenth Amendments to the U.S. Constitution.
U.S. Supreme Court Justice Antonin Scalia
A new book— Reading Law: The Interpretation of Legal Texts –by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discusses the general approach to such interpretation used by the Justice. It comes with this disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the [U.S.] Supreme Court.”
The book is a series of short essays on principles or canons of statutory and constitutional construction that supposedly guide judges and lawyers. The book, however, does make telling comments on issues in the pending health care and immigration cases.
One of the central precedents advanced by the Obama Administration for the constitutional validity of the Affordable Care Act is a 1942 Supreme Court case, Wickard v. Filburn, 317 U.S. 111 (1942), which held that a farmer’s cultivation of wheat for his own consumption affected interstate commerce and, therefore, could be regulated by the federal government under the Commerce Clause of the U.S. Constitution that grants (in Article 1, Section 8) Congress the power “To regulate Commerce . . . among the several States. . . .” The new Scalia-Garner book, however, says the Court in the Wickard case “expanded the Commerce Clause beyond all reason.”
Another canon says that “a federal statute is presumed to supplement rather than displace state law.” In other words, Congress must make express any intent to displace or preempt state law. This relates to the pending case about the Arizona immigration law. The main argument for its unconstitutionality is preemption of state law regarding immigration by federal law.
The book also says, “A statute presumptively has no extraterritorial application.” Again this is a presumption and thus requires Congress to make explicit any intention for a statute to have extraterritorial application. This relates to a case to be reargued next term on whether the federal Alien Tort Statute of 1789 applies to alleged foreign human rights violations. A related issue is whether corporations may be held liable under that statute.
Another canon is “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.
Columnist George Will
George Will in his recent column, “Unleash the high court” lambasts a recurrent theme in many Supreme Court cases that express deference to the choices of the democratically-elected legislative and executive branches. Similarly Mr. Will criticizes George Romney’s presidential campaign website for saying that federal judges should “leave the governance of the nation to elected representatives.” Will argues that “judicial deference to elected representatives can be dereliction of judicial duty.”
Will specifically targets the Supreme Court’s decision in the Slaughterhouse Cases, 16 Wallace 36 (1873), regarding the “privileges or immunities” clause of Section 1 of the 14th amendment to the U.S. Constitution that was ratified in 1868. That provision is as follows:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)
At issue in the Slaughterhouse Cases was whether a Louisiana statute that granted one firm a monopoly of the slaughterhouse business in New Orleans and banned already established competitors was valid under the “privileges or immunities” clause, and the Court held, 5 to 4, that it was constitutional.
The Court in the Slaughterhouse Cases reached this conclusion after it had determined that there was a distinction between U.S. citizenship and state citizenship and that this clause of the 14th Amendment only protected the former. Such U.S. citizenship privileges or immunities, according to the Court in this case, included the right of a citizen “to come to the seat of the government to assert any claim he may have upon that government;” the “right of free access to its seaports;” and the right “to demand the care and protection of the Federal government over his life, liberty, and property on the high seas, or within the jurisdiction of a foreign government.” But they did not include the right to engage in a business.
The Slaughterhouse Cases also rejected the claims that the Louisiana statute violated the “due process” clause and the “equal protection” clauses of the 14th amendment.
According to George Will, the decision in the Slaughterhouse Cases was a “still-reverberating mistake . . . [by taking] a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise.” This led, he says, in the 1930s to the Court’s formally declaring economic rights to be inferior to ‘fundamental’ rights. As a result, according to Will, the Slaughterhouse Cases “begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.”
Circuit Judges Brown and Santelle
George Will’s call for “unleashing” the Supreme Court was made more explicit in an astonishing concurring opinion in April of this year by two judges on the U.S. Court of Appeals for the D.C. Circuit–Judge Janice Rogers Brown and Chief Judge David Bryan Sentelle— in Hettinga v. United States.
In that case the appellate court, 3-0, affirmed the dismissal of a complaint alleging that a federal statute subjecting large milk producers-handlers to financial contributions to a fund for payments to producers violated the Fifth Amendment to the Constitution’s due process and implied equal protection provisions. Following Supreme Court precedents, as the circuit court was required to do, the latter’s per curiam opinion stated the governing legal principle as follows:
“We grant statutes involving economic policy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). A statutory classification that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id. at 313–14. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).”
The appellate court then found that the challenged federal statute did have the requisite rational basis and, therefore, was constitutional.
The concurring opinion that was authored by Judge Brown and joined by Chief Judge Sentelle said that no other result was possible in light of the Supreme Court precedents. They then went on to suggest that the Supreme Court should overturn its large body of cases holding that economic regulations were subject to a rational basis test and return to the Lochner-era when there was strict judicial scrutiny of such regulations. The concurring opinion said:
“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
“First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
“As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .”
“The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
“The hope of correction at the ballot box is purely illusory. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”
The third circuit judge on the panel in Hettinga, Judge Thomas B. Griffith, filed his own concurring opinion to announce that he did not join the concurring opinion of Judge Brown and Chief Judge Sentelle “with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” (Emphasis added.)
As of the close of business on June 19th, the Supreme Court website did not report the filing of a petition for certiorari in the Hettinga case. But keep watching for such a petition and for the Court’s ruling thereon. If it grants the petition, be on guard.
Supreme Court Interpretation of Constitutional Restraints of Federal and State Economic Regulations
Will’s article and, to a lesser extent, the Brown and Sentelle concurring opinion jump over an important period of our constitutional history.
Starting in 1905 in the U.S. Supreme Court used the “due process” clause of the 14th amendment to invalidate numerous state statutes regulating various aspects of economic activity. An early leading example of this jurisprudence was Lochner v. New York, 198 U.S. 45 (1905), that held a New York statute limiting the hours of labor in bakeshops to be unconstitutional. This approach continued into the early 1930s when the Court held various New Deal statutes unconstitutional until the conflict between the Court and President Roosevelt’s New Deal legislation reached a head in early 1937 with a presidential proposal for reorganizing the federal judiciary by appointing additional judges when an incumbent reached his 70th birthday (the so-called “Court-packing” proposal).
This proposal never went anywhere, but the Court suddenly changed course by upholding various federal and state economic regulations. This was the so-called “switch in time that saved nine.” Important cases in this reversal of course by the Supreme Court were West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) and United States v. Caroline Products Co., 304 U.S. 144 (1938). In West Coast Hotel, the Court, 5 to 4, upheld a state minimum wage law and overruled a contrary decision from 1923 (Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923)). In Caroline Products, it upheld the constitutionality of a federal statute prohibiting certain milk from being shipped in interstate commerce because it was supported by substantial public-health evidence and was not arbitrary or irrational. The latter case also explained that regulations of economic activity would be subject to a “rational basis” review while restrictions on more fundamental rights would be subject to a higher level of scrutiny. Presumably George Will was referring to Caroline Products as the 1930s decision that, in his opinion, dastardly relegated economic rights to an inferior position to fundamental rights.
Another case in this new Supreme Court direction was Palko v. Connecticut, 302 U.S. 329 (1937), although it did not involve economic rights. Instead this case held that a state statute permitting the prosecution to take appeals from lower courts in criminal cases did not violate the 14th Amendment. This conclusion followed from the Court’s decision that this Amendment did not protect all of the rights set forth in the first eight amendments to the U.S. Constitution, but only to those “implicit in the concept of ordered liberty” and those principles of justice “so rooted in the traditions and conscience of our people to be ranked as fundamental.”
Also important in the Court’s new direction was the previously discussed Wickard v. Filburn, 317 U.S. 111 (1942), which upheld a federal statute establishing a wheat-marketing quota system that included wheat consumed on the same farm. It thereby repudiated an old distinction in the law between direct and indirect effects on interstate commerce. This case–the one criticized by Justice Scalia–made it clear that the Court would uphold the federal regulation of any economic activity, no matter how local, if it could have a demonstrable effect on interstate commerce.
This interpretation of the 14th Amendment as applied to economic regulations has now been followed for roughly 75 years in a huge body of cases in the Supreme Court and other U.S. courts.
As discussed in a prior post, in the mid-1970s I relied upon this well established body of law in a successful defense of an acquisition of an Iowa bank by an out-of-state bank holding company at about the same time that the Supreme Court upheld the constitutionality of a New Orleans ordinance that only allowed two push-cart vendors in the French Quarter of that city.
Given this long-established and firmly embedded interpretation of the Constitution, I was astounded to discover the George Will column and the concurring opinion in Hettinga calling for obliteration of this large body of law. I also was startled to read a commentary by David Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law:”There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions.”
Such a position seems to me to be contrary to the principle of starie decisis. As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
Indeed, in the infamous Citizens United v. Federal Election Commission case from 2010 that overruled a prior Supreme Court case regarding election financing, Chief Justice Roberts submitted a concurring opinion that was joined by Justice Samuel Alito solely “to address the important principles of judicial restraint and stare decisis implicated in this case.” After this concurring opinion reviewed the reasons for starie decisis, it quoted earlier Supreme Court decisions that said the principle was not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Otherwise, Chief Justice Roberts (and Justice Alito) said, “minimum wage laws would be unconstitutional.” Here, Chief Justice Roberts cited with approval West Coast Hotel Co. v. Parrish’s overruling of Adkins v. Children’s Hospital of D.C.
Presumably that would at least make it more difficult for Roberts and Alito now to overrule 75 years of Supreme Court case law on the constitutionality of economic regulations and to hold, explicitly or implicitly, that West Coast Hotel was an erroneous decision.
I, therefore, was somewhat relieved to read Professor Bernstein’s further observation that “there is less unanimity on what to do about it [the belief by some legal scholars that the rational basis standard for review of economic regulations was erroneous]. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, says it is too late to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society and to the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional. Richard Epstein argues that, at least on the margins, the Supreme Court can still restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”
In a subsequent post I will review other theories of interpreting the Constitution.In the meantime, I invite comments correcting, amplifying or contesting the assertions in this post.