Even The Conservative Richard Posner…
…thinks Roberts’ voting rights decision sucked [redacted; this is a family blog]. In this Tammy Duckworth thread over at Balloon-Juice, my BJ colleague, Soonergrunt sends us to conservative jurist Richard Posner’s post at Slate that basically eviscerates the VRA opinion in terms that I’m pretty sure appelate judges do not often direct at the Chief Justice of the United States.
Seriously, from the very beginning of the piece, it’s no-prisoners-time:
Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.
Begin as you mean to go on, your honor:
… Justice Ruth Bader Ginsburg’s very impressive opinion (in part because of its even tone), at a length (37 pages) that, remarkably, one would not like to see shortened—marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.
That evidence—the record before Congress—should have been the end of this case.
It was not. Why? Because, says Judge Posner — a Reagan appointee to the 7th Circuit Court of Appeals — Chief Justice Roberts is a “crafty” incrementalist, which, translated out of collegial speech, I think means that Roberts is a slick ratf**ker:
….the real key to “stealth” jurisprudence is patient, crafty incrementalism (no conservative monopoly on that strategy, of course). It’s a strategy illustrated by Shelby’s predecessor, the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder, heavily cited in Shelby. That was a case in which Chief Justice Roberts, again writing for the majority, criticized the same part of the Voting Rights Act, and invoked the same imaginary doctrine of “equal sovereignty,” yet without actually invalidating anything, and so avoiding a dissent by the liberal justices. So now in Shelby he could quote extensively from his opinion in Northwest Austin as if to imply that really there was nothing new here—just a small and logical next step.
Posner saves the last, best bit of rhetorical disdain for his closing:
Was that a disreputable tactic, or merely a clever one?
As intended by its writer (I’m sure), that question answers itself.
Image: William Hogarth, The Polling, from The Humours of an Election series, 1754-1755.
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