Photo of the day

Favorite photo I’ve taken so far this week.  Captures a great moment (Kim and my son Alex) in a great location:

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Supreme Court and intellectual consistency

Of course, I’m not the only one who noticed the seeming intellectual inconsistency on judicial activism in this week’s decisions.  Ruth Marcus has a nice column on the matter:

Indeed, as Justice Ruth Bader Ginsburgnoted in her dissent [on the VRA case], the majority was triply activist. It abandoned “its usual restraint” by considering a broad-based challenge rather than determining whether the law was constitutional simply as applied to the particular Alabama county involved. Likewise, Ginsburg said, the majority “veers away from controlling precedent” about treating states equally “without even acknowledging that it is doing so.” And, “hardly showing the respect ordinarily paid when Congress acts to implement” the guarantee of voting rights, “the Court does not even deign to grapple with the legislative record.”

Very true, but I really like where she tries to find the liberal consistency (and largely succeeds, I think):

In this sense, the liberal position on both voting rights and DOMA are linked, and impelled, by the Constitution’s solicitude for minority rights and individual liberty. I believe this is correct, but I also concede that this conviction cannot be disentangled from my conception of the Constitution and the sweeping protections it provides.

I have a harder time finding intellectual consistency in the conservative position in the two cases. On voting rights, the conservative justices are enormously deferential to states, and dismissive of congressional power, despite the explicit constitutional grant of authority to Congress. Yet they are respectful of congressional action, and happy to intrude on traditional state prerogatives, when it comes to same-sex marriage.

If there is a way to reconcile these results, I’m eager to hear it.

Here’s the reconciliation… those are the policy outcomes the conservatives prefer.  Nothing more.  Anything else is Constitutional hand-waving.  And on that note, Richard Posner  (and for the record, Posner is generally considered a conservative judge) follows in his son’s footsteps to show just how intellectually dishonest the VRA ruling was:

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.

Maybe I’m a little obsessed with the Shelby County case, but that’s probably because it is honestly about as extreme a case of judicial activism– for either side– as you’ll ever find.  When liberals engage in judicial activism, it tends to be to extend principles in the Bill of Rights, i.e., making sure trials really are fair, that your right to remain silent is truly respected, etc.  I suppose it’s possible such rulings may go too far, but it’s too far in embodying clear Constitutional principles,.  Here the conservatives have simply over-turned a policy they don’t like and made up a heretofore non-existent Constitutional principle to do so (I’d argue there’s far more Constitutional basis for a right to privacy).

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