Sunday, June 28, 2009

Supreme Court 17: How narrow can you go?

Interrupting my discussion of the privacy issue for a moment, I want to describe a decision that was announced by the U.S. Supreme Court last week.

There is endless debate about the power of the Supreme Court relative to the other branches of government. The arguments for the Court's weakness are: 1) it cannot initiate action on any particular issue; it must wait for a case to be brought to it by someone who has an interest in the matter; and 2) it must rely on the Executive Branch to enforce its decisions.

I've already addressed one counterargument in this and subsequent posts, i.e., that the checks and balances on the Court are difficult for the political branches of the federal government to implement. Another such consideration, which is my main point in the current post, is that the Court has discretion to decide a case in as broad or narrow a manner as it sees fit. That flexibility gives the justices more control over the effect that their decisions will have on the world.

One example of a case where a Court majority used this ability is Northwest Austin Municipal Utility District v. Holder, the decision on which was announced last Monday. Some background:

In 1965, Congress enacted the Voting Rights Act, which, in some parts of the country, represented the first effective implementation of the 15th Amendment, which banned racial discrimination in voting. That amendment had been ratified in 1870.

Due to the demonstrated ingenuity of southern officials in finding creative ways to disenfranchise African Americans, the Act required election officials in places that had practiced discrimination, to clear any changes in election procedures with the federal government. Depending on one's point of view, that clause either:

  1. Fulfilled its purpose, and can be honorably retired; or
  2. Is still required, either to: 1) combat ongoing discrimination; or 2) serve as a deterrent against any effort to revive discriminatory practices.

Northwest Austin Municipal Utility District Number One sued the federal Justice Department, seeking exemption from the pre-clearance requirement under the Act's so-called "bailout" provision. The trial court interpreted that provision to apply only to political subdivisions who perform the task of registering voters, which the utility district does not do.

In its appeal, the district asked the Supreme Court to rule that either: 1) as a matter of statutory interpretation, the district is entitled to seek a bailout; or 2) as a matter of constitutional interpretation the pre-clearance requirement is no longer valid.

The Court went for option #1, with Chief Justice John Roberts writing the majority opinion. Roberts wrote:

That constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5 [i.e., the section of the Act that imposes the pre-clearance requirement].

Observers on both sides of the question were braced for the ultimate confrontation over the Voting Rights Act. One possible outcome would have been for the "liberal wing" (Stevens, Souter, Ginsburg and Breyer) to vote to uphold the Act, with the "conservative wing" (Roberts, Scalia, Thomas and Alito) taking as wide a swing as possible to dismantle the Act, and the "swing justice" Anthony Kennedy making it 5-4 in whichever direction he would choose.

That did not happen. By crafting his opinion narrowly, Roberts was able to get seven of his colleagues to sign on with him. Justice Clarence Thomas wrote a separate opinion, agreeing with the majority that Northwest Austin has the right to be exempted from the pre-clearance requirement. However, Thomas would have gone further than his colleagues:

Because the Court’s statutory decision does not provide appellant with full relief, I conclude that 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 Court has left its options open as to whether it will consider the broader constitutional question in the future. The possibility that they could eventually find some or all of the Act to be unconstitutional, is bolstered by the fact that all nine justices agreed to statements as least as skeptical as this one that appears in the majority opinion:

Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.

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