Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the U.S. Supreme Court to decide the matter once and for all.  As she explained:  

The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the political stars appeared to be aligned in favor of abortion advocates. Abortion enjoyed widespread support in academia and among opinion elites as well as in public opinion polls, and was making headway in state law. The year before the Supreme Court decision was handed down saw nearly 600,000 legal abortions performed.

Despite these trends, taking abortion away from the legislatures galvanized widespread opposition. From hundreds of proposed constitutional amendments and state laws, to a national movement that has slowly but steadily shifted cultural opinion, abortion has become an issue that permeates the political process, particularly respecting judicial nominations, and has morphed into a key divide between the major parties.

Interestingly, in a speech a the University of Chicago this past weekend, Justice Ginsburg signaled that she shares Carrie’s perspective, at least with respect to Roe v. Wade. Per the AP story:  

U.S. Supreme Court Justice Ruth Bader Ginsburg says she supports a woman’s right to choose to have an abortion, but feels her predecessors’ landmark Roe v. Wade ruling 40 years ago was too sweeping and gave abortion opponents a symbol to target.

Ginsburg, one of the most liberal members of the nation’s high court, spoke Saturday at the University of Chicago Law School. Ever since the decision, she said, momentum has been on abortion opponents’ side, fueling a state-by-state campaign that has placed more restrictions on abortion.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.” . . .

Ginsburg told the students she prefers what she termed “judicial restraint” and argued that such an approach can be more effective than expansive, aggressive decisions.

“The court can put its stamp of approval on the side of change and let that change develop in the political process,” she said.

The logical import of Justice Ginsburg’s comments, of course, is that the Supreme Court should resist the temptation to establish a right to gay marriage from coast to coast, instead letting this issue play out in the states. Justice Kennedy made remarks in March that led some to believe he is of the same view, based on his “concerns that the high court,” rather than the democratic process, ”is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.”

No one can know for sure how Judge Ginsburg will vote on these cases, but her comments are certainly a good sign for those of us who are asking if the Supreme Court will “decide to detonate another dirty bomb, poisoning the culture wars for decades to come,” as Carrie put it.

Next week, the roughly 1,400 members of the Boy Scouts of America’s national council will vote on a resolution that would revise the BSA’s membership policy on homosexuality. The proposed resolution would eliminate the BSA’s prohibition of youth members who are “open or avowed homosexuals” but would supposedly retain its prohibition of adult leaders who are.

In my initial post on the resolution, I explained why I believed that it was ill-considered and unsustainable. Last week, in a document clumsily titled “Membership Resolution Points of Clarification,” the BSA tried to defend its resolution against the various criticisms that it has received.

In points 3 and 4 of my initial post, I explained that while the BSA’s proposed new policy would purport to leave in place its policy denying membership to adult leaders who are “open or avowed homosexuals,” it would in fact undermine the legal basis for maintaining that policy in states that prohibit discrimination on the basis of sexual orientation. In Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the BSA has a constitutionally protected right under the First Amendment to its existing membership policy. That victory rested heavily on the BSA’s position that (as the Court summarized it) “homosexual conduct is inconsistent with the values it seeks to instill.” The resolution, however, is conspicuously silent on whether this remains the BSA’s position.

Further, because the proposed new policy would apparently allow youth members who are “open or avowed homosexuals” to occupy leadership roles in the troop, it is difficult to see on what basis the BSA could expect to justify barring adults who are “open or avowed homosexuals” from leadership roles. The Washington Post, in a house editorial that criticized the BSA resolution for retaining the adult ban, cited my post and expressly agreed with me that the line that the BSA would draw between adult leaders and youth leaders is incoherent.

So what does the BSA have to say in response? Essentially nothing.

For starters, the BSA doesn’t maintain that its proposed new policy would bar youth members who are “open or avowed homosexuals” from having leadership roles. In the absence of such a provision, troops at a minimum will be allowed to have youth leaders who are “open or avowed homosexuals.”

The BSA doesn’t mention Dale at all and doesn’t directly argue that it could sustain its proposed new policy against litigation challenges. The closest it gets to the subject is its statement that the resolution “rightly recognizes there is a difference between kids and adults.”

But is there a significant difference between a 17-year-and-11-month old youth leader and an 18-year-old (or older) adult leader—a difference so significant that the BSA could plausibly be thought to hold, and to be advancing, a position that “homosexual conduct is inconsistent with the values it seeks to instill” when it allows “open or avowed homosexuals” to be youth leaders but not adult leaders? The BSA’s failure to address this fundamental question is telling.

Someone who prefers the existing BSA policy over a wholesale repeal of that policy might be tempted to support the BSA’s resolution. But there is no reason to think that resolution would adopt a workable and sustainable approach. It instead would operate as the way-station to a wholesale repeal, the first step in a very quick two-step surrender. So anyone who favors the existing BSA policy over a wholesale repeal of that policy should vote against the resolution.

Addendum: Tomorrow at noon at the Heritage Foundation, I’ll be taking part in a panel discussion on the BSA resolution.

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.

2013—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See here for relevant excerpts from the report.)

AEI released an excellent paper this week by Tanya Marsh and Joseph Norman, “The Impact of Dodd-Frank on Community Banks,” detailing the damage the financial reform bill has inflicted on these important institutions. As the authors explain, the Consumer Financial Protection Bureau (currently the subject of a constitutional challenge I’ve written about) is imposing significant costs on relationship-based banking and threatening the survival of the banks that are vital to our “Main Street” economy. 

The study was released on the heels of a Washington Post story by Robert Kaiser detailing how Barney Frank convinced the influential Independent Community Bankers of America — the community bankers’ lobby — to stay on the sidelines during the fight over Dodd-Frank’s passage. The ICBA’s cooperation was secured in exchange for a reduction in FDIC assessments for smaller banks, and a Faustian bargain that did nothing to free those same banks from the CFPB’s oppressive regulatory regime.

The standardization resulting from Dodd-Frank comes at the expense of the relationship banking model, the preferred model of many community banks. According to James H. McKillop, III, in Congressional testimony for the Independent Community Bankers of America:

Community banks . . . serve rural, small town, and suburban customers and markets that are not comprehensively served by large banks. Our business is based on longstanding relationships in the communities in which we live. We make loans often passed over by the large banks because a community banker’s personal knowledge of the community and the borrower provides firsthand insight into the true credit quality of a loan, in stark contrast to the statistical models used by large banks located in other states and regions. These localized credit decisions, made one-by-one by thousands of community bankers, support small businesses, economic growth, and job creation.

The CFPB’s vast regulatory web also forces community banks to pour money into compliance and away from lending. In Florida, 96 percent of community banks and credit unions “expect to spend considerably more time and money on compliance with new federal regulations over the next three years,” while 64 percent expect to hire new compliance staff and reduce their lending. The State National Bank of Big Spring, Texas, a plaintiff in the Dodd-Frank lawsuit, suspended its entire residential-mortgage division for fear of CFPB liability. Twelve hundred rural US counties would have “severely limited banking access” without community bankers, who also serve other key sectors of our economy:

Community banks provide 48.1 percent of small business loans issued by US banks, 15.7 percent of residential mortgage lending, 43.8 percent of farmland lending, 42.8 percent of farm lending, and 34.7 percent of commercial real estate loans, and they held 20 percent of all retail deposits at US banks as of 2010.

Democrats sold the CFPB as a response to the last financial crisis, and consumers did need a watchdog for protection from predatory lending. However, Marsh and Norman persuasively explain that community banks had little or nothing to do with the major causes of the financial crisis, including subprime lending, securitization, and derivatives. Overall, “total residential mortgage defaults at community banks [made] up only 2 percent of all defaults between 2003 and 2010,” while “[c]ommunity banks participated in only 0.07 percent of residential mortgage securitization activities between 2003 and 2010.”

Nonetheless, the cost of complying with the new regulatory regime will probably drive many of those same community banks out of business, or at least lower the quality and quantity of the services they can offer the customers in their communities. Meanwhile, as I wrote back in February, large banks will continue to rely upon lawyers, lobbyists, and in-house regulatory-compliance divisions to bear their regulatory burden. Which means that one net result of Dodd-Frank will probably be to increase the market share of the megabanks that caused the financial crisis in the first place, at the expense of the kind of banks that were actually behaving responsibly.  

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

Information released yesterday by the Census Bureau about voter turnout in 2012 further undermines the constitutionality of the distinctions made by Section 5 of the Voting Rights Act between the jurisdictions it covers and those it does not. This discussion here in the Atlantic Wire concludes that “those states [now covered by Section 5] didn’t see lower-than-average black turnout. In fact, averaging both turnout and deviance from the norm in those Voting Rights Act (VRA) states, we see that they outperformed non-VRA ones.” Earlier, they note, “Black turnout was highest in Wisconsin, Mississippi, and North Carolina. The lowest percentages — of eligible black voters, not of voters overall — were in Arizona, Washington, and Arkansas.” Chief Justice Roberts had noted Mississippi’s high black turnout rate at the oral argument in Shelby County v. Holder, where the constitutionality of Section 5 has been challenged.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.” Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)   

Sunday’s NYT featured a lengthy story by Adam Liptak arguing that the Supreme Court has become particularly friendly to business interests.  I analyze the study upon which Liptak’s article is based here, and Michael Greve adds his thoughts here.

In cases across the country, various individuals and the family-owned corporations they operate are invoking their religious-liberty rights not to comply with the Obama administration’s HHS mandate on contraceptives (including abortifacients). A leading argument that the Obama administration is making is that “for-profit, secular companies,” unlike “non-profit, religious organizations,” are categorically incapable of engaging in an exercise of religion within the meaning of the federal Religious Freedom Restoration Act and thus have no rights under RFRA. And the Obama administration uses the adjectives “for-profit” and “secular” redundantly: It maintains that every “for-profit” corporation is ipso facto “secular.” (I’m drawing here from DOJ’s Tenth Circuit brief in the Hobby Lobby case, pp. 11-12.)

The Obama administration’s argument can’t withstand scrutiny. For starters, RFRA itself makes no distinction between “for-profit, secular companies” and “non-profit, religious organizations.” On the contrary, its protections extend generally to “persons”—a term that under federal law includes corporations (“unless the context indicates otherwise”). Further, it ought to be obvious that for-profit companies can and do engage in, or abstain from, activity in a way that amounts to an exercise of religion. Take, for example, an incorporated Jewish deli that closes on the Sabbath and that serves only kosher food. (For yet further refutations of the argument, see this post of mine from mid-March.)

It turns out that, in a case that exposes the folly of its position, the Obama administration is afraid to defend its categorical proposition that a for-profit corporation has no religious-liberty rights under RFRA. That surely is why it moved to voluntarily dismiss its appeal of the preliminary injunction that a federal district court granted to Tyndale House Publishers, a for-profit corporation that publishes Bibles and other religious books. The D.C. Circuit granted its motion to dismiss last Friday.

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist inquiry.

I hadn’t seen any reason to comment on the left-wing “birther” attacks on Senator Ted Cruz’s eligibility to be president.  Cruz was born in Canada in 1970 to a mother who was then an American citizen. Under the laws then in place, he was an American citizen by virtue of his birth.

As this Congressional Research Service report sums it up (p. 25; see also pp. 16-21), the “overwhelming evidence of historical intent, general understandings [in 18th-century America], and common law principles underlying American jurisprudence thus indicate[s] that the most reasonable interpretation of ‘natural born’ citizens would include those who are considered U.S. citizens ‘at birth’ or ‘by birth,’ … under existing federal statutory law incorporating long-standing concepts of jus sanguinis, the law of descent.” In other words, there is strong originalist material to support the semantic signal that “natural born Citizen” identifies someone who is a citizen by virtue of the circumstances of his birth—as distinguished from someone who is naturalized later in life as a citizen. (In McCain’s case, the dispute turned on whether he was indeed an American citizen by virtue of his birth—or was instead naturalized a citizen under a law enacted when he was eleven months old. For more, see law professor Gabriel Chin’s lengthy article making the case against McCain.)

To my surprise, the New Republic’s Noam Scheiber tries to argue that Cruz’s embrace of constitutional originalism somehow means that Cruz can’t determine that he is a “natural born Citizen.” But the only evidence that Scheiber offers for this position is the assertion (which Scheiber mischaracterizes as a concession) by a non-originalist law professor in an MSNBC interview that the proposition that a person is a “natural born Citizen” if he is a citizen by virtue of his birth “isn’t really clear cut if you limit yourself to the actual wording of the Constitution” (that’s Scheiber’s paraphrase) but instead depends on “how our understandings have evolved over time.” Scheiber both overlooks the powerful originalist evidence in support of Cruz’s status as a “natural born Citizen” and misunderstands how originalist methodology operates. (In public-meaning originalism, you don’t “limit yourself to the actual wording of the Constitution,” and you don’t find yourself lost simply because the Constitution “never defines what ‘natural born’ means.” You instead look to the public meaning of the term at the time it was adopted.)

My point here isn’t to contend that the originalist evidence points entirely in one direction. As law professor Michael Ramsey observes in a post that I’ve run across while finalizing this post (a post that also takes issue with Scheiber), there are originalist scholars who don’t “find the argument entirely conclusive.” But Scheiber’s piece is a cheap whack at Cruz as well as a cheap whack at originalism.

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez). Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name. Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.”

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession.” A more blatant defiance of controlling authority of a higher court is difficult to imagine.

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

Although my name hasn’t yet been added to the online list of speakers, I am very pleased to pass along that I will be taking part in National Review’s summer cruise of the fjords of Norway (the ancestral land of a This Day in Liberal Judicial Activism superstar, former chief justice Earl Warren). The cruise runs from August 1 to 8.

If the cruise interests you and the timing works for you, I’d definitely encourage you to sign up. From my three previous NR cruises, I can attest that the many excellent programs and parties organized by National Review promote a real camaraderie among the NR speakers and cruisers, and there are many other activities available on the ship and at the various ports of call. If you’ve never been on a cruise before, you’ll find the ship itself (part of the premium Holland America line) to be a marvel, spacious and elegant and comfortable.

Back in 2011 when I was the first to highlight the extraordinary position against religious liberty that the Obama administration adopted in the Hosanna-Tabor case, I elicited a tizzy on the Left when I raised the possibility that the administration’s hostility to the ministerial exception to federal antidiscrimination laws was part and parcel of a broader ideological agenda that would have gay causes trump religious liberty. The particular case of Hosanna-Tabor had nothing to do with issues of homosexuality, the critics observed, so they claimed not to see the connection.

Another particular issue that gays and lesbians presumably wouldn’t have much direct interest in is whether the Hahn family that owns and operates Conestoga Wood Specialties Corporation and that has religious objections to providing insurance coverage for abortifacients has a religious-liberty right not to comply with the HHS mandate. But that hasn’t stopped the Lambda Legal Defense and Education Fund from filing an amicus brief against the Hahns in their Third Circuit appeal. (I haven’t found an online link to the brief, but will add it in if I do.)

In its statement of interest, Lambda Legal explains that it believes that the Hahns’ arguments “undermine equality guarantees and other religiously neutral regulations of the public marketplace to the detriment of our society generally and, in particular, the vulnerable constituencies Lambda Legal serves.” In other words, Lambda Legal sees a sharp conflict between gay causes and a robust conception of religious liberty, and it believes that gay causes should trump religious liberty. That, of course, is exactly the broader ideological agenda that I raised in discussing Hosanna-Tabor.

Anyone who doesn’t perceive the strong clash between gay causes and religious liberty isn’t paying attention.

1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority. In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

During February’s Supreme Court oral argument in Shelby County v. Holder over Section 5 of the Voting Rights Act, Justice Scalia characterized Section 5 as a “racial entitlement,” which would never be repealed. A few weeks ago, Justice Scalia defended his comments, explaining that while the federal government uses Section 5 to protect minority voting rights, it does not use it to protect white voters. Not surprisingly, Justice Scalia has provoked outrage from the left, which is waging a last ditch-effort intimidation campaign to preserve Section 5. 

History professor Gary May, in “Scalia’s Limited Understanding of the Voting Rights Act,” continued this intimidation campaign in the Washington Post, ironically, by distorting history and articulating a particularly limited understanding of the Voting Rights Act. May tries to discredit Scalia by arguing that even today, the Voting Rights Act “protections extend to all Americans regardless of skin color,” citing the fact that its role in eliminating literacy tests and poll taxes in the 1960s enfranchised poor whites.

I too would be outraged if Justice Scalia had actually downplayed the Voting Rights Act’s crucial role in protecting minority voting rights in the 1960s, or if he thought that eliminating literacy tests and poll taxes helped only minorities.

May’s ridiculous insinuation that Scalia would allow a return to long-extinct voter-suppression methods obscures Section 5’s actual constitutional defects. Justice Scalia’s comments relate to the Department of Justice’s controversial enforcement of Section 5, which requires covered states to pre-clear all voting-laws changes with the DOJ or the United States District Court in D.C. This enforcement rarely involves voting practices that exclude minorities from the polls – the last twelve years has seen three cases – and such measures would be illegal in any case.

Instead, Justice Scalia’s controversial comments referred to the Department of Justice’s refusal to invoke Section 5 to protect white voters. As a March inspector general report explains:

The Civil Rights Division’s current leadership has stated that it interprets the “retrogressive effect” test under Section 5 not to be applicable to White voters who are in the numerical minority in a particular jurisdiction. . . .

As noted in Chapter 2 above, upon receiving a proposed voting change submitted by a jurisdiction covered under Section 5, the Voting Section reviews the proposed change to determine whether the change is free of discriminatory purpose and effect. In evaluating whether a proposed voting change has a discriminatory effect, the Voting Section examines whether a proposed voting change would leave members of a “racial or language minority group” in a worse position than they had been before the change with respect to “their effective exercise of the electoral franchise.” This discriminatory effect is commonly called “retrogression” or a “retrogressive effect.”

In both public filings and statements to the OIG, the Division has stated that it interprets the non-retrogression principle of Section 5 to be “race­-conscious,” in that it does not cover White citizens when they are in the numerical minority in a covered jurisdiction. (citations omitted).

It’s worth noting, as Roger Clegg has, that the “retrogressive effect” standard itself has dubious constitutional merit, and repealing it would address selective-enforcement issues. Regardless, within the context described by the inspector general, Justice Scalia’s observations seem much more non-controversial—at least if you support equal protection under the law.

While May would have his readers believe that Justice Scalia’s position would hurt minorities, the DOJ’s Section 5 preclearance objections are the bigger culprit; the vast majority of these objections involve redistricting (39 out of 67 in 2009). The DOJ interprets Section 5 to require racially gerrymandered and segregated districts—districts with a majority minority population—instead of evenly distributing a minority population across the state. In practice, as Politico reported this week, this can hurt black politicians, who have difficulties transitioning from representing a majority minority district to representing a state. Even members of the Congressional Black Caucus recognize this:

The most painful irony in black politics is that the very legislation that has ensured African-Americans have a voice in Congress, the Voting Rights Act, now can act as an impediment to blacks attempting to climb the electoral ladder.

While black-majority districts all but guarantee African-American representation, they also have the effect of stamping the members, fairly or not, as simply representing black interests. It’s a less than preferable training ground for a politician who wishes to run statewide among a more diverse electorate. . . .

For years, black Democrats and white Republicans have, particularly in the South, struck a Faustian bargain of sorts wherein they agree to racially packed districts that ensure safe seats for all parties. It has meant longevity for many black politicians in the state capitols and Washington but done little to vault African-Americans beyond their homogenous districts to statewide office. . . .

Many CBC members, including civil rights pillars like Clyburn and Lewis, have concluded that district-packing is detrimental and stated that they’d be OK with representing more diverse districts.

The Left’s intimidation campaign will only intensify during the run-up to the Court’s decision. We will continue to hear desperate assertions about how striking down Section 5 would return our country to its racist past. Thankfully, if May’s weak op-ed is any indicator, these attacks will gain little traction with informed Court observers, and I remain hopeful that Section 5’s current formulation has seen its last days.

On the New Republic’s website, Linda Hirshman contends that a letter that Justice Sandra Day O’Connor wrote to Senator Barry Goldwater in 1988 makes “clear” that O’Connor “saw the [Supreme] Court as a political body.” But that contention makes no sense if there is any difference between politics and judicial philosophy. (And for anyone who believes that there is no such difference, the contention is a trivial tautology.)

According to Hirshman, in her letter to Goldwater just days before the 1988 presidential election, O’Connor wrote:

I will be thankful if George B. [George H.W. Bush] wins. It is vital for the Court and the nation that he does.

Informed observers recognized that the justices that George H.W. Bush and Michael Dukakis would nominate would likely have very different approaches to constitutional interpretation. Recognizing that prospect, as O’Connor evidently did, does not entail regarding the Court as a “political body.”

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause. One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.

Read the whole brief.