Thursday, June 27, 2013

Read Stuff, You Should

Happy Birthday to Sandra Smith, 73. The one and only Dr. Janice Lester -- and, of course, James T. Kirk. Was also in a good Columbo.

Just a bit of good stuff:

1. A few days old, but: a nice look at the FISA judges. Good reporting by John Shiffman and Kristina Cooke.

2. Yes, Kevin Drum is certainly right about this one: nobody cares about federalism.

3. Sarah Binder looks at the 2006 precedent in order to think about whether Congress is likely to act on the Voting Rights Act.

4. And Jack Balkin on Windsor (via Lemieux).


  1. Kevin Drum is of course quite wrong about this one. Apart from Alito, the conservatives in Windsor would have all denied the appeal for lack of standing without reaching the issue, as both appellant and respondent were asking for the appeal to be upheld.

    Secondly, Scalia's dissent (I have only skimmed Alito's) rightly points out the numerous ways in which DOMA can serve a constitutional purpose without interfering in state sovereignty. For example, a couple married in state A, which recognises their marriage, but domiciled in state B, which does not. For the purposes of their federal tax return, are they married? DOMA supplies an answer, without in any way impinging on the prerogatives of either state to define and uphold marriage as they see fit.

    This thinking stems from a basic leftist misunderstanding on what federalism is. If federalism were a desire for states to have plenary power, then Drum's criticism would make sense. Perhaps if he (and you) were to educate yourselves, you would avoid such elementary errors.

    1. Oh, dear, touchy, touchy, touchy. How about this:

      Most people don't care about federalism (surely a safe statement as most people don't care about most things). People who have the ability to make substantive decisions usually use stated justifications that do not comport with their actual motivations (also surely a safe statement for anyone who has lived around human beings for longer than about six months). The history of the current and, for that matter, all Supreme Courts shows that that Supreme Court justices are in no way different than the rest of humanity in this regard (not completely safe, but you would have to argue vigorously and convincingly that they are somehow different in this regard). Therefore:

      It is a very cogent observation that the Supreme Court, in their decision making, was much more energized by desired outcomes and unspoken, if obvious, motivation than by stated reasoning. Now, that particular statement wouldn't stand up in Logic 101, or in the Supreme Court for that matter, but it is almost surely true.

      Now, moving on.

    2. Allow me to summarize:

      Drum: Conservative judges don't care about federalism. Look at their hypocrisy in Windsor.

      Me: There's nothing at all hypocritical about Windsor, and Drum is an ignoramus for thinking so.

      You: Everyone is motivated by secretly desired outcomes not their stated reasoning. Also, stop being so touchy.

      Complete non-sequitur. Look, the conservative judges are each advancing coherent positions on federalism (although there are substantial divides between, say, Alito and Thomas). I agree that they have an obvious motivation - they care about federalism. Of course, they also care about other things too. Yes, most people don't care about federalism, but most people aren't constitutional lawyers.

    3. @ Anon: The different kinds of federalism held by various justices aren't fully separable from their broader understanding of policy. It does include plenary power or doesn't. It applies to this kind of situation, not that (Gonzales v. Raich, for example). Once we're at this level, though, even folks who'd claim to be federalists have started picking and choosing where federalism applies.

      Perhaps that's better worded as "only caring about *MY* federalism."

  2. #3, the Binder post, is really depressing.

    So what do those concerned about voting rights and/or are liberals and/or Democratic partisans do now? Give up on "pre-clearance," and pivot to promoting the issue with new framing and focus, such as that voting modernization thing mentioned by Obama once re-elected or a constitutional amendment for a right to vote?

    Switch to an all-in political, mobilization strategy getting out the vote in the districts/states formerly covered by the VRA?

    Both of these are relatively long-term strategies. Not clear what can be done to pre-emptively impede state and local malfeasance between now and 2014 or 2016. We'll just have lawsuits starting post-2014, trying to upend existing facts on the ground.

    1. We had a constitutional amendment granting the right to vote. The 15th amendment. The Roberts court just ignored it. Yes, I'm quite depressed over this.

    2. Partial touché.

      Yes, there's the 15th amendment, but that can be read in a limited fashion. Some think tank and activism work has centered around pushing for a movement to pass national laws or an amendment that makes more explicit and expands the theoretical and practical meaning of "a right to vote":

    3. You're right we ought to do more to make things explicit. But it isn't like the 15th was vague about Congress' powers to enforce the rights of voters regardless of race.

      Whether it's "secure in their persons, houses, papers, and effects," "full faith and credit," "equal protection of the law," "well regulated militia," "speedy and public trial" or (for our federalist friends) "interstate commerce," if five members of the court want to find a way around it, they will.

    4. Some are thinking along these lines. A law professor writing in the New Republic recently talks about an approach drawing on the federal government's enumerated powers over federal election law:

      And he even refers to Obama's post-election support for new voting modernization legislation, so it seems like this has support in key Democratic circles.


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