Monday round-up
on Jul 15, 2013 at 10:26 am
This weekend’s coverage of the Court featured (among other things) further commentary on some of last Term’s high-profile decisions.
Two commentators focused on the Court’s decision in Shelby County v. Holder, in which the Justices held that Section 4 of the Voting Rights Act is unconstitutional and can no longer be used to determine which jurisdictions must comply with the Act’s preclearance requirement. At the Election Law blog, Rick Pildes reprints comments by Mark Braden, a Republican election-law expert, regarding possible responses to the decision that might also be politically feasible. Braden suggests that bifurcating redistricting and election administration issues, and subjecting the latter but not the former to preapproval requirements, might be more likely to garner Republican support. Will Baude of PrawfsBlawg discusses the aspects of the decision that he finds “more problematic,” including that “there is reason to doubt . . . that the Constitution forbids discrimination between states. More importantly, the Court does not explain what constitutional provision would forbid such discrimination.” And in his column for BlueRidgeNow.com, LeRoy Goldman reviews the history of a majority-minority congressional district in North Carolina and concludes that it is both “only a matter of time before the high court will deal with more cases that challenge racial gerrymandering” and “a question of when, and not if, the court ends it, clearly and decisively.”
Other commentary focused on the decisions in Adoptive Couple v. Baby Girl and United States v. Windsor. In an op-ed for The Washington Post, Christy Maldonado – the biological mother of Baby Veronica, the child at the heart of the custody dispute in Baby Girl – argues that Baby Veronica should be returned to the South Carolina couple who seek to adopt her. At his own blog, Ed Mannino contends that “the key to Justice Kennedy’s decision-making resides in his views of human dignity and the value of human life, concepts rooted in both his conservative/libertarian judicial philosophy and his Roman Catholic religion” – concepts that “surfaced most recently” in his opinion for the Court in Windsor.
Finally, the weekend’s clippings also looked ahead at some of the cases on next Term’s docket. Writing for the Volokh Conspiracy, John Elwood discusses whether NLRB v. Noel Canning, the challenge to the president’s recess appointments to the National Labor Relations Board – could be rendered moot if the Senate were to confirm the president’s nominees for the current NLRB vacancies, who could then retroactively ratify all of the decisions made by the recess appointees. Elwood suggests that this is not possible under the jurisdictional rules that apply to the NLRB because “the governing statutes shift jurisdiction [over these matters] from the agency to the reviewing courts.” UPI’s Michael Kirkland previews Schuette v. Coalition To Defend Affirmative Action, the challenge to a Michigan constitutional amendment which prohibits public universities (among others) from using affirmative action; describing last Term’s decision in Fisher v. University of Texas at Austin as having “narrowed affirmative action in college admissions as much as it possibly could without killing it,” he explains why the Michigan case “not only threatens big trouble for what remains of race-based preferential admissions, but for gender-based admissions policies as well.”
In The American Prospect, Lincoln Caplan reviews the role of habeas corpus as a “mysterious yet potent safeguard of liberty in American law.” He cites the case of Warren Hill, the Georgia death row inmate who is scheduled to be executed today, as an example of the “illogical chasm between law and justice—between, on the one hand, the statute’s reflexive antagonism to challenges to the death penalty and, on the other hand, much of the country’s reckoning with the failure of states to administer capital punishment constitutionally.” He adds that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “and the Supreme Court all but hide this chasm—and the injustice it regularly leads to—behind byzantine rules and rulings, making it exceedingly hard for our legal system to keep the Constitution’s promise that habeas will be available to prevent the most serious deprivations of liberty.”
Finally, last week this blog commemorated the retirement of General William Suter, the longtime Clerk of the Court. At The Wall Street Journal Law Blog (subscription required), Jess Bravin had his own tribute to General Suter, whom he described as bringing “an outsize presence to court’s marble headquarters, regaling lawyers preparing for admission to the bar and reporters awaiting argument with folksy wisecracks and sharp observations.”
