The blog in a nutshell

The blog in a nutshell

Thursday, December 10, 2015

General thoughts on the December sitting

Sorry for the lack of blogging.  It has been a combination of being very busy and, to be honest, nothing particularly noteworthy in the legal world for me to blog about.  That seems odd because there have been a number of high-profile cases recently argued before the Supreme Court.  But I don't have much to say about them:

Evenwel (the case challenging whether voting districts can be apportioned by person, rather than by eligible voter): The result here seems pretty straightforward as a matter of basic doctrine.  We live in a representative democracy.  The Constitution itself requires, for purposes of determining Congressional apportionment, for representatives to represent a certain number of people, not voters.  The legal arguments supporting the petitioner are incredibly thin.  The practical difficulties of the challengers' claim is highlighted by the fact that we do not even have good information about the number of eligible voters in most voting districts.  But, like the Voting Rights Act cases and others, this Supreme Court has found ways to make up doctrine as it suits them for what many would think is partisan advantage.  I'm afraid whether the Supreme Court finds for Evenwel or not will simply depend on how shameless it is.  

Fisher II (the Texas affirmative action case)- I think it has been pretty clear that the Supreme Court has basically constructed a rule about affirmative action that, ever since O'Connor left the Court, allows for de jure affirmative action in the abstract only.  So the only real question is how much more battered will the hopes of people who support affirmative action get.  I think the more interesting question is one put forth by Ilya Somin at the Volokh Conspiracy.  Prof. Somin argues that even facially-neutral affirmative action plans that have the  intent of increasing minority enrollment are unconstitutional.  (In Fisher, it is the Texas "10%" plan that guarantees admission to all Texas students who finish in the top 10% of their class.  It is not being challenged in this case.) I think this is actually a very liberal (and doctrinally incorrect) argument that would create very wide repercussions:  

First - Whether legislation can have an intent (as opposed to a purpose) is a difficult question in and of itself.  Conservatives believe that a drafter's intent is irrelevant, and legislation should be interpreted as a segregated reader would interpret text, rather than read text as the drafter intended.  Liberals disagree (but only as a guide for interpreting text).  Somin would go further and read intent into a bill even when there is no text.  And intent in passing a bill - as opposed to interpreting text in light of purpose - is an impossible thing to determine because intent may vary from person to person.  Someone may vote for a welfare cut because they want money for tax cuts.  Another may do it because they dislike the poor or minorities.  And a third may do it merely to get support on a different bill.  Is the intent of Congress in passing this welfare reduction a violation of the 14th Amendment under Somin's theory?

Second - It's a pretty well-established doctrine of law that judicial inquiry into the actual intent of legislatures (and executives passing government action) should be avoided at practically all costs.*  This is why the rational and strict scrutiny tests normally used to determine constitutionality of laws is objective, not subjective, in nature.  Stating that subjective intent matters would create a host of problems, ranging from questions of who gets to do the factfinding to what intent matters and when is something "too" racially motivated.

Third - If this rule applies to affirmative action, will it apply to regular laws as well?  Conservatives have panned disparate impact analysis in the context of Constitutional rights, and have generally won.  What Somin is arguing for is not quite disparate impact, but it is getting there.  And given the Conservative southern strategy (where Lee Atwater infamously admitted that cutting government spending was broadly an appeal to racists), how many laws will we have to invalidate?  Liberals and conservatives have recently excused them of looking for whatever reason around to invalidate the other's preferred laws (think gay marriage bans, health care, Voting Rights Act, campaign finance refom, state immigration laws).  With Somin's theory applied broadly, this will go from Pandora's Box being slightly cracked to busted wide open.  But if it is applied narrowly, minorities will rightly wonder if the Equal Protection Clause of the Constitution is only applied broadly when it is used against them, rather than by them.

(I reserve the right to a more detailed version of this critique in a follow-up post).

Hyatt:  Hyatt is a case that involves the question of whether and when states may assert sovereign immunity, as a matter of federal constitutional right, when being sued in the state courts of other states.

I actually think this might be the most doctrinally interesting of the December cases.  My gut (and completely uninformed) reaction is that the challengers asking the federal government to interfere in the state's judicial proceedings itself sort of violates a form of federalism.  In that sense, I'm not even sure the case is procedurally ripe.  Instead, I think the federal court should essentially stay out of it until the state of Nevada takes a specific action *against* the state of California independent of merely announcing a rule of decision in its judiciary.  Should the state of Nevada try to attach or seize California's assets, then California could go and challenge that action - in an Original Jurisdiction case - before the Supreme Court.  And, in doing so, I think the sovereign immunity claim can be better distilled and applied when there really is a sovereign interest at play that must be vindicated by our Constitutional structure.

*In some cases, such as using pre-emptive strikes against black jurors, the test cannot be subjective.  Even then, we've seen, Courts have been reluctant to overturn even the most obvious of intentionally-racist acts that can be objectively defended.  

1 comment:

  1. My plan is to focus on Bank Markazi for the January sitting. That case revolves around whether Congress can simply pass a bill requiring a specific outcome in ongoing litigation. While I think that question is, in and of itself, interesting, I want to take the question in a slightly different situation.

    The case involves the terrorism exception to the FSIA (full disclosure: I have worked on this exception in the past, and I happen to think it is constitutionally problematic). What I want to focus on is whether, by requiring the Court to seize specific assets, is Congress commandeering the Court and delegating to it foreign affairs powers. I may then follow up on those posts to see whether the lack of discretion exacerbates or minimizes the problem, and then finish up as to why the DC Circuit's decision in Peugh v. Libya (holding that foreign sovereigns sued under the FSIA do not have due process rights) is wrong.