Adler on Shelby

The evidence from 1868-70 is that the final clause of the 15th A (like that of the 13th and 14th) paraphrased the language from McCulloch v Maryland. Thus, the clause was intended to function as the equivalent of a N&P clause and should be interpreted the same way. Prof. Adler’s assertion that it’s somehow different is simply wrong.

Given this understanding, the “Left” has no problem justifying the VRA, and Prof. Adler’s post is complete nonsense on this point. Congress can pass any law it wants on rational basis grounds alone: “Let the end be legitimate….”

“The Reconstruction Amendments present different questions than the enumerated powers in Article I, Section 8.” Adler doesn’t fill this in – he says it’s not his area, which is fine

You are gracious here. That was the part of the post where Adler had to immediately start talking about something else, because once you actually begin to think about those “different questions,” Shelby County is exposed for the gibberish it is. It’s not “my area” either, but those Amendments (esp. the 14th, natch) rebuilt the Constitution, and Adler knows that perfectly well.

Of course the Reconstruction Amendments “rebuilt” the Constitution, but they did not eliminate the doctrine of enumerated powers. They enumerated some additional powers that, by their nature, are not necessarily subject to the same constraints as those found in Article I. So, for instance, these Amendments authorize Congress to act on states as sovereigns in ways that would not be permissible under, say, the Commerce Power.

As I noted in my post, the idea that the degree of federal intervention should be proportional to the nature of the problem, and not merely plausibly rational, is not an invention of the Shelby County decision. Rather it’s how the Court has interpreted the 14th Amendment enforcement power for some time. The power to “enforce” with “appropriate” legislation must be congruent and proportional to the harm Congress seeks to prevent. This does not require judges to believe that Congress has adopted the “right” response, but only that there is some degree of fit between the legislation and the underlying problem. Such an analysis easily incorporates some degree of temporal context.

Saying, as Mark Field does, that the power to enforce the provisions of the Reconstruction Amendments was to be parallel to that under the N&P clause a interpreted in McCulloch does not get us very far, as this decision requires federal actions to be consistent with both the letter and the spirit of the Constitution. The term “appropriate” does some work, the only question is how much.

JHA

A post-script: As I noted in my original post, I’m more interested in understanding the opinion than trying to assail or defend it. The post was prompted by a series of discussions I had with people who had strong opinions about the decision without having first trying to understand it on its own terms.

But, if you’re looking for more enthusiastic defenders of the decision, here are some from SCOTUSBlog:
http://www.scotusblog.com/?p=165978
http://www.scotusblog.com/?p=165953
http://www.scotusblog.com/?p=166441

JHA

but only that there is some degree of fit between the legislation and the underlying problem

I.e., rational-basis review.

This from one of the SCOTUSblog posters (all consistently unpersuasive – I cannot remember a decision, even Bush v. Gore, so unconvincing as Shelby County) is telling:

In today’s decision in Shelby County, the Court cited Northwest Austin more than thirty times, and Sections I, II, and III.A of the Court’s decision are strikingly similar to Sections I and II of Northwest Austin.

Which tells you just how ill-founded the decision is in the case law since the VRA was enacted. Shelby County relies almost entirely upon dicta from NW Austin (part II of the op, explaining the grounds on which the Court is *not* going to decide the case), which I strongly invite those interested in this issue to read.

One can debate the wisdom of Stevens et al. in joining what was obviously a compromise decision, but here’s part of NW Austin that did *not* get recycled:

“The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U. S. 57, 64 (1981). The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “documented] contemporary racial discrimination in covered states.” 573 F. Supp. 2d, at 265. The District Court also found that the [****8] record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” Id., at 264.

I could go on about this all day ….

Saying, as Mark Field does, that the power to enforce the provisions of the Reconstruction Amendments was to be parallel to that under the N&P clause a interpreted in McCulloch does not get us very far, as this decision requires federal actions to be consistent with both the letter and the spirit of the Constitution. The term “appropriate” does some work, the only question is how much.

There are two problems with your response: First, Roberts failed to specify any provision of the Constitution with which the VRA is inconsistent. In fact, he dredged up the doctrine of “equal state sovereignty” out of the ashes of the Confederacy, to paraphrase Scott Lemieux. Second, once we establish that there is no provision of the Constitution inconsistent with the VRA, the language of McCulloch leaves the regulation to Congressional discretion. McCulloch also uses the word “appropriate” — that’s where the drafters of the post-Civil War amendments got the term — and nobody thinks that was an opinion which limited Congressional power in any significant way.

First, Roberts failed to specify any provision of the Constitution with which the VRA is inconsistent. In fact, he dredged up the doctrine of “equal state sovereignty” out of the ashes of the Confederacy, to paraphrase Scott Lemieux.

Mark is, of course, correct. The passage I quoted above from Katzenbach, it seems to me, does *all* the work regarding the supposedly borderline nature of Section 4.

Another nauseating passage:

But a more fundamental problem remains: Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day. The dissent relies on “second generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution.

As if Congress had no rational basis, or factual record, from which to find that *precisely* the jurisdictions which had attacked ballot access were those which had resorted to “second generation barriers” when direct attack proved impossible under the VRA – exactly the “contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination” that the Katzenbach Court said *did* support the “extraordinary” measures of the VRA. Like I said: nauseating.

(I disagree with Katzenbach that the VRA was indeed “extraordinary,” but even if that’s made into a test as Roberts would have it, Section 4 passes it easily.)

let alone anything approaching congruence and proportionality

I do not find this test enunciated in Katzenbach. There are, obviously, reasons why the elasticity of the Commerce Clause/N&P Clause combination might require such a test. I do not see how they could apply to the 15th Amendment.

Katzenbach: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”

The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional..

Saying that the Shelby County majority disagrees with Mark’s premises is stating the obvious. Prof. Adler is, I think, prudent to offer no sharper criticism of those premises.

Leaving aside the record compiled by Congress, which the D.C. Circuit treated in detail, Ginsburg’s dissent in some depth, and the majority scarcely at all, there is the special fact that the VRA is self-updating: covered jurisdictions can apply to “bail out” (and the feds can “bail in” other jurisdictions, as they did with NYC boroughs). It therefore is perhaps the worst possible statute for the majority to complain about its being out of date or whatever. If, say, my home state of Mississippi thinks that it has entered a new era of racial harmony and equality, it is free to apply to bail out. Or was, before the Court relieved it of any such necessity, despite its having “the highest rate[] of successful §2 suits” between 1982 and 2005. Slip op. at 24 (Ginsburg, J., dissenting).

It’s a terrible decision. It’s not an exercise in legal reasoning, just judicial will to power, exercised on a basis that, as Michael McConnell said to his credit, is just “made up.”

Second, limiting McCulloch would cause significant problems for any originalist.

Didn’t stop them in Sebelius. I was almost surprised not to see a citation to the dissent and to Roberts’ op ….

Anderson’s point @17 about the self-correcting nature of the VRA (i.e. jurisdictions can bail themselves out) in my view is particularly important for the constitutionality of the whole and eliminates the need for the court to give all Section 4 localities a “get out of jail free card.”

If in fact Congress relied on outdated standards in establishing Section 4 then one would expect nearly any locality that applied to get bailed out would easily get their release. If in fact the “extraordinary conditions” which necessitated Section 4 persisted, then few such localities would be able to get out.

There are plenty of things that can be objected to in the decision, but at least for me, this was the bit that iced it as a poor opinion – it wasn’t broke and didn’t need to be fixed, yet the court fixed it anyway, presumably for their own agenda.

(Much thanks to Anderson and a few others for helping my thinking on this in the first place).

First of all, with all due respct to Jonathan Adler, judicial opinions stand for the propostions they articulate. Justice Adler might well have done a better job than Justice Roberts rationalizing the results in Shelby–he could hardly have done worse–but it is the Roberts opinion that is the law, not the Adler opinion, and while the Adler argument is interesting it is not law.

Second, I can think of no other issue in any other area of the law in which the Court is empowered blithely to substitute its judgment for that of the legislature on what is “appropriate.” What Shelby majority is doing here is going far beyond enforcement of the “congruent and proportional” test used under the 11th and 14th Amendments (itself a product of disasterously irrational jurisprudence). The statutory provsions at issue do not allow or forbid any particular practice as discriminatory. They simply set up an enforcement mechanism. Preclearance is required for jurisdictions with a history of discrmination. (And note–Justice Roberts does not claim at all to be applying a “congruent and proportional” standard–possibly for the very good reason that the cases apply such standards in the 14th Amendment context don’t deal with enforcment mechanisms, but instead involve subtantive provisions).

Third, neither Justice Roberts nor Jonathan Adler deal with the existence of “bail out” and “bail in” provisions. Why does Congress need to update the formula for the original list when it has provided a mechanism for adding and subtracting jurisditions to the preclearance list based on their recent history? Let Shelby County, Alabama demonstrate that it has no recent history of discrimination, and off the list it goes.

Mark Field @13:

Roberts failed to specify any provision of the Constitution with which the VRA is inconsistent. In fact, he dredged up the doctrine of “equal state sovereignty” out of the ashes of the Confederacy, to paraphrase Scott Lemieux. Second, once we establish that there is no provision of the Constitution inconsistent with the VRA, the language of McCulloch leaves the regulation to Congressional discretion. McCulloch also uses the word “appropriate” — that’s where the drafters of the post-Civil War amendments got the term — and nobody thinks that was an opinion which limited Congressional power in any significant way.”

For me, the bail-in and bail-out provisions — the “self-updating” feature of the VRA that Anderson notes @17 and Trader Joe @21 — save the Act and remedy any deficiency flowing from an outdated section 4 formula.

But Mark Field’s comments in this thread, and some other reactions I’ve seen to the decision, make me wonder if some people see any limiting principle on the scope of Congress’s power under the enforcement clause of the 15th Amendment.

So, if I may ask, in all sincerity: is there any coverage formula that would not be authorized by the enforcement clause? If the “equal state sovereignty” has no basis in the Constitution, then on what grounds would any coverage formula be challenged? What limitation does “appropriate” provide (granting here that we would read that limitation as allowing more than the Chief Justice will allow)?

Could Congress, consistent with its powers under the enforcement clause, design a coverage formula that said, “All states that were in state of open rebellion against the federal government in 1862 shall be covered jurisdictions indefinitely”?

25, meet 26. Yeah, no “counties beginning with ‘J'” rule. And as Windsor reminds us, the “states of open rebellion” criterion would be “mere animus” and thus would not pass muster.

But the evidence before Congress sufficed to show that the covered jurisdictions deserved to stay covered. And the argument “well but what about OTHERS?” falls on its face: (1) argue that Sections 4 & 5 are extreme, then (2) complain not enough jurisdictions under them? I’d like a book on chutzpah, and I’d like *you* to pay for it.

(27 poorly worded; meant “what about others?” to refer to that argument which has been made, not to attribute it to 25.)

So, if I may ask, in all sincerity: is there any coverage formula that would not be authorized by the enforcement clause?

It ought to be a “no crazy legislation test” (or, to put it more politely, a rational basis test). “Preclearance for all jurisdictions that do not enforce a broccoli consumption madate” would flunk.

OK. Rational basis. Got it.

And, of course, also in Art. I, section 8:

“by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

(Of course, we all know what a mockery Congress and the Court have made of that limitation, modern copyright terms being what they are…)

(N.B. Army budget limit should read 2 years, not 3.)

Not having read through this exchange, I wonder whether anyone has addressed the following conclusion from whom must be three of the leading scholars in this field; I truly hope that this discussion is not being had without anyone here have the the interest or perhaps even competence to address their conclusion:

IV. Conclusion

Reasonable people can disagree about the relevance of the 2012 election or even racially polarized voting patterns to the constitutionality of the coverage formula for section 5 of the Voting Rights Act. Indeed, we view our findings more as a response to the notion that the election and reelection of an African American President settles the constitutional question in favor of the VRA’s detractors. If anything, the opposite is true. To be sure, the coverage formula does not capture every racially polarized jurisdiction, nor does every county covered by section 5 outrank every noncovered county on this score. However, the stark race-based differences in voting patterns between the covered and noncovered jurisdictions taken as a whole demonstrate the coverage formula’s continuing relevance.

In particular, for those looking for a way to distinguish the covered jurisdictions from the noncovered jurisdictions, and to do so without running afoul of the “elephant whistle” problem, differential rates of racially polarized voting provide an ideal metric. There can be no doubt that the covered jurisdictions differ, as a group, from the noncovered jurisdictions in their rates of racially polarized voting. There can also be no doubt that voting in the covered jurisdictions as a whole is becoming more, not less, polarized over time.

* Nathaniel Persily is the Charles Keller Beekman Professor of Law and Political Science at Columbia Law School; Charles Stewart III is the Kenan Sahin Distinguished Professor of Political Science at the Massachusetts Institute of Technology; and Stephen Ansolabehere is Professor of Government at Harvard University.

From what I can see their comments which may well be spot on deal with the legal reasoning, not the ground level reality of the minority political experience and history in covered areas. There seems to be little reference to that. But why not have the conversation started by someone who knows the problem inside out? Is it not important enough for CT to have a resident expert? I just don’t get it.

38: Thanks, you are too kind. One of the sad things about Shelby County is that I don’t even have to be any kind of election-law expert to see how egregious it is.

(Tho I think I was mistaken upthread about Manhattan etc. being bail-in jurisdictions; rather, I think they were included in Section 4 a few years after the VRA passed. As I grok it, the bail-in jurisdictions are under Section 3, and they’re still subject to preclearance.)

Barry @ 20

The key difference between the cases Kevin Drum compares is that one is a “what laws are the States forbidden by Federal law to make” (pretty much nothing that is not openly discriminatory) and the other is “what laws is the Federal government allowed to make” (which is a significantly stricter standard.)

I think this conversation illustrates the limitations of polite discourse as a path to the truth. Holbo is very considerate in noticing and describing the flaws of the Right’s logic, and Adler responds accordingly.

From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power.

The problem with this – and this is no great insight on my part; everyone on this thread knows it – is that Adler isn’t actually addressing the Right’s perspective. This decision came out the way it did because “from the Right’s perspective” it would be better if black people didn’t vote.

Now that’s a nasty thing to say, I know, but I think there’s a real danger in following these racists down this rabbit hole. Look at this:

The term “appropriate” does some work, the only question is how much.

No shit. Who can deny this? The fact that, on some literal level, this is true doesn’t make it any less bullshit.

either stupid, lying, or both

See! That’s more like it!

Don’t get me wrong, I understand and appreciate the effort to make sense out of the SCOTUS position. Holbo, and even Adler, are doing a service here. But Jesus Fucking Christ, what bullshit.

I thought Adler was “doing a service” in giving us some clue how an intelligent conservative tries to “make sense” of the decision. I believe most of us are sufficiently concerned about the possibility of being mistaken on a given subject that we welcome hearing the contrary arguments – “reality-based community” and all that?

The very halfhearted defense by Adler itself indicates there really isn’t any “there” there, and he knows it.

What struck me, pulling up some cases this morning, was that I found a SCOTUS opinion whose notion of “adapted to the means” fits pretty well with what Adler suggests is at work in Shelby County. Trouble being, that the op was a dissent by Thomas, joined by no one else.

51 seems exactly right. It’s useful to know what the best defense that can be made of the Shelby decision is, and it seems likely that Adler’s done about as well as anyone could. And then we can all draw whatever c0nclusions we see fit from the patent weakness of that best defense.

I’ll repeat what I said on an earlier thread, and point out that the legal doctrine being introduced is a bit broader in effect than just opening the door to strategic shrinking of the voter pool. Alito is persuading his conservative colleagues to accept his notion about extending judicial review (the power to declare a law unconstitutional) into a kind of delaying veto. The Supremes, in Shelby, are sending the law back down to the Congress for a do-over, which may, or may not, pass muster with the Supremes.

That’s a pretty profound shift in the balanced separation of powers, in a conservative direction, because it removes the liberal ratchet, whereby, after some period of struggle, Congress finally enacts some landmark legislation, and, then, as Congress does, retreats into its usual somnolent corruption.

The conservatives and the left share a realistic appraisal that the Voting Rights Act, now, can be re-enacted ad infinitum by solid majorities given the political dynamics, but no completely updated Voting Rights Act can be enacted, so now the Supremes have cleverly discovered a way to throw a spanner in the works. Remove the prop of the old act, without actually having to find the act unconstitutional; rather, the Congress just hasn’t met an appropriate procedural standard in rationalizing its enactment with data more recent than the 1960s. If the Supremes can apply such a delaying veto to any Act of Congress, by finding deficiencies in the act’s procedural justifications, the great pendulum of partisan and ideological alternation will swing only one way: tick, but no tock.

He’s coming up with a justification for disempowering black people.

I’d make a tiny amendment here. What he’s doing is coming up with a justification for people who want to disempower black people. He’s been very careful to hold himself a step removed from overt racism.

Adler’s comment 7 exemplifies two important modes of bullshit argumentation.

For one thing, as I said, he puts himself at arms-length from the racists. He never says that a valid argument exists supporting SCOTUS on Shelby; he merely tells us that a colorable argument can be made, and you can see it if you squint at the facts in just the right way.

Second – and this is a phenomenon that Holbo needs to investigate and give a name – Adler attempts to identify the absolute minimum change that must be made to reality in order to justify a nonsensical argument.

Adler accomplishes that here:

The term “appropriate” does some work, the only question is how much.

See, if we can just divorce that one, single word from its meaning, then we can do whatever we want to with the 15th Amendment. It’s just a minor difference of opinion, right? Not some outrageous fabrication. This isn’t like “Obama was born in Kenya,” a belief that requires numerous revisions of observed reality. Shelby only requires one fact to be tossed out, so isn’t it much more plausible?

Well, to echo js @ 38, I would like to thank Anderson, Mark Field, and the other commenters who took the trouble to engage substantively with the text and the ideas at play. They made the first 36 comments (and comment 41 by OP) a pleasure to read and an illuminating experience.

“I would like to thank Anderson, Mark Field, and the other commenters who took the trouble to engage substantively with the text and the ideas at play. ”

If you think that there are actual ideas involved, then that’s a fun game to play. Like how many angels can dance on the head of a pin, or something. Too bad that in this case it’s all racist bullshit. Adler is careful not to call his post a defense of Shelby, but rather an exploration of how someone might read it as not racist bullshit, but the same actual black people will be stopped from voting no matter how it’s described.

I’d make a tiny amendment here. What he’s doing is coming up with a justification for people who want to disempower black people. He’s been very careful to hold himself a step removed from overt racism.

Is Shelby County v. Holder bad (1) because it’s a bad policy result, or (2) because it’s a bad argument? Both, of course! But it’s the latter that makes it outrageous, not just undesirable.

If it’s a bad argument, then it’s worthwhile testing out how bad it is – reassuring ourselves, perhaps, that (2) is true as well as (1). Bad arguments have a way of being overruled eventually.

If the point of law (and politics) is to tell motherfuckers what total motherfuckers they are, then discussing the ethics and rationality of mother-fucking may seem like a waste of time. But in law, at least, I’m used to (1) dealing with people who disagree with me strongly and (2) persuading third parties that those people are mistaken. And that usually requires some attention to argument.

Now, it’s surely a mistake to think that politics is all about having the best arguments. (It’s a mistake to think that even about law.) Maybe the GOP has it right and it’s all really just about telling everyone what motherfuckers our opponents are. But I think there’s a place for arguments and persuasion, too. And that the size of that “place” needs to grow, not shrink, in our society. Because I think that we are not just better … we are *correct.*

I’d make a tiny amendment here. What he’s doing is coming up with a justification for people who want to disempower black people.

I’d also like to make an amendment. Obama, Kanye West, and Dwight Howard are quite likely going to retain their franchise and cast their votes, and are probably not even the intended targets of the decision or the subsequent legislation.

This was not necessarily the case 75 years ago.

If you think this is correct (maybe Republicans are going to try to prevent Dwight Howard from voting?); whether you think it is interesting or important as a change, if there has been a change…is in itself an interesting question to me.

We simply must refuse to characterize this as a program to prevent poor blacks, poor Hispanics, and the poor elderly from voting and insist it is entirely racism…why?

I’m with mcmanus. This case involves the Fifteenth Amendment and the Voting Rights Act, yet all you people keep bringing race into it.

Who are these people who are being convinced of the correctness of any arguments? You have to take context into account. Perhaps if this was a difficult case, and respected conservatives were saying that it was brilliant — then there certainly would be a need to understand it fully and argue against it. But the respected conservatives have already weighed in. And they said, more or less, that it was BS.

In that context, a short blog post that says that it’s all understandable if you take into account that people on the left see the Federal government as maximum overlord and the states as tiny, embattled fortresses soon to be crushed — while conservatives see themselves as Wolverines — well, that’s not really an argument as such. It’s a smokescreen, intended to preserve the fiction that someone, somewhere, thinks that there’s more going on here than Bush v Gore II. I would guess that it’s kind of a reputation builder — who will be the first to toady up to power, that kind of thing. It’s not like Adler took a case and had to present the best defense he could, even if that wasn’t much of one.

So yeah, it’s just racism. I’m not even going to extend it to Bob’s “racism and classism” because I’m too dismissive to use three words instead of one.

Kind of a joke, but if you’re more amused running the word counter, feel free.

Also: The Civil War wasn’t just about slavery.

“So if one thinks that Roberts is open to having his mind changed on the merits, detailed legal and logical criticisms of his appalling decision may well bear fruit.”

But there is outside context to be dealt with again. How likely is anyone at all in the 21st century U.S. to have their mind changed by the merits of anything? Cf. global warming, austerity.

I’ve lived through what I take to be three periods in U.S. history: 1960something-1980, 1980-2000, 2000+. The first was formative for me, the second was a period of reaction during which people could always say that things will change once we get through the period of reaction, the third made it clear that no change is currently possible — certainly no change based on legality or logical argument. That would be a commonplace lead-in to a brief that change will happen because of protest or revolution, but I don’t think that’s going to happen either. The system is locked up badly enough so that change will happen because of outside factors that aren’t really under anyone’s direct control.

So I understand the amusement value of arguing about this as if the argument matters, and wouldn’t deny anyone their fun, but if we’re going to bring ourselves back to reality, the reality is that racist creeps are doing this and there’s nothing that can be done about it until the system finally breaks.

Tom, I think you (and Anderson in 63) are right about this, and I think there are other reasons to chew over the legal basis for decisions like this. (See my 49 and the expansion of my point in 51, 53 and 63.)

My 47 was intended hypothetically. I worried that all this talk about process might distract folks from what is actually going on. With the exception of Adler himself (and anyone agreeing with him) I didn’t see any actual evidence of this until John’s 66. I’m curious to know if I’m misreading John, or if he really sees something significant beyond racism that accounts for this ruling.

How likely is anyone at all in the 21st century U.S. to have their mind changed by the merits of anything?

It is credibly reported that Roberts intended to vote to overturn Obamacare.

“his opinion certainly didn’t say why — it notoriously suffered from cut-and-paste failure”

Sorry, I misremembered — it was the opinion of the 4 dissenting justices that suffered from copy-and-paste failure. But if Roberts came up with some convincing BS for why he voted as he did, I haven’t heard it.

“On the other hand, he did have an opinion on the merits of voting one way or the other”

But there it’s sounding like you agree with me — that he didn’t care a bit about the legal reasoning involved, although he may have cared about politics in some sense. So why should we care about the legal justification when he doesn’t? It’s not like advanced analysis is required to understand why Shelby was a bad legal decision, and any potential future competent jurist isn’t going to need writing about Shelby to understand why he or she should not follow it.

Needing someone to provide a shoddy, partial explanation of Shelby in order to shoot it down is a ritualistic action. It has the psychological benefit, for the left-liberals who go through the ritual, of reassuring them that logic and reasoning is important, even though they see no evidence of this in actual political events. But it has the important cost that by treating Adler’s description as a reasonable one to be argued against, the decision itself is brought within the tent of reasonability for the general public. It is transformed from a decision that, shockingly, everyone thought was bad all across the political spectrum, to one that people are starting to argue about in the usual way.

No one can understand things that their job requires them not to understand, and the people interested in this thread in general are lawyers and academics. So I don’t expect anyone to understand. But it’s really not that difficult a concept.

“the decision itself is brought within the tent of reasonability for the general public.”

Leaving aside that the general public actually has a default assumption that a Court decision is more or less reasonable. Defeating that presumption is why it’s not only important to discuss it, but also to address any defenses raised.

In politics, I think, you’re either arguing with your opponents, or shooting at them. I prefer arguing. Chalk me up as a naive procedural liberal.

he didn’t care a bit about the legal reasoning involved, although he may have cared about politics in some sense. So why should we care about the legal justification when he doesn’t?

I’d say because we should care about the legal justification because making clear the utter lack thereof can—can—create the appropriate kind of political pressure. Which, as you seem to acknowledge, some like Roberts is after all sensitive too. Not saying anything novel here, but to me the important point is that politicalfootball’s 47 is entirely consistent with Anderson’s 51 and LizardBreath’s 53. (And I’m hardly a committed proceduralist.)

To put the point differently, Shelby seems to me a nakedly political* decision designed to prevent minorities—black people in particular—from voting, so as to help create/preserve Republican “majorities”. But that takes nothing away from the fact that repeatedly pointing out the baselessness of the decision, legally speaking, simply highlights the nakedly political character of the decision.

*Given that this metaphor was already beaten to death in a previous thread, I am hoping I’ll be allowed it. (I’d venture that common usage allows it.)

“Which, as you seem to acknowledge, some like Roberts is after all sensitive too.”

Actually, as far as I know, he’s never really explained why he decided that way on Obamacare. Maybe he was sensitive to politics, maybe he wasn’t — basically he just exercised arbitrary political power, and there’s no way to call him to account for it.

“But that takes nothing away from the fact that repeatedly pointing out the baselessness of the decision, legally speaking, simply highlights the nakedly political character of the decision.”

Repeatedly pointing out in what way? Remember what happened with e.g. the torture discussion in the U.S. For a long time, there was a consensus that torture was something that we didn’t do, even though we actually did it in some cases. But this consensus helped to limit it in certain important ways. What happened once talking heads in the news started to respectably discuss torture pro or con? No one was convinced by the merits of the arguments against torture, even though those merits are of course very real. Instead people predictably divided up into pro-torture and anti-torture camps along tribal lines. Every time that someone went and had a rational discussion with a torture advocate about how bad torture was, they helped to legitimate pro-torture as a position that could be reasonably held.

Obama understands this — I might as well congratulate him for once. He doesn’t say “We don’t torture because of X, Y, and Z.” He just says that America doesn’t torture. It needs to get reinstated as a taboo, not a product of rational argument.

In the same way, the important reactions to Shelby have already happened. Some more or less principled conservatives said that there’s nothing in the Constitution about the doctrine of equality of states. The more that people argue about legally now, the more they legitimate something that has already been quite thoroughly delegitimated.

If you didn’t say that conservatives were wrong on Shelby, no one would have? Actually, I think that Obama, various respected legal conservatives, and Rep. John Lewis all did. So let’s take out the far too vague word “conservative” and put in “Adler”. If no one had responded to Adler, would that have made him right on “no one said he was wrong” grounds? Or would he have been ignored, just like the many other racist apologists who you didn’t address?

And I don’t understand your problem with arguments from relative prominence at all. It’s clear that arguments against someone else’s position can both legitimate and delegitimate that position. Which one happens depends on how the argument is made and on the relative prominence / respectability of the people involved. If you decided that you really had to rationally answer the arguments of some writer for the KKK, the end effect would be to elevate the KKK, no matter how you did it. If Eric Holder decided that he really had to answer your arguments, all of a sudden people all over the world would be wondering who John Holbo was and reading Crooked Timber, even if he wrote very dismissively. There may be no easy answers to any particular case, but the general principle isn’t that complicated.

I’m more prominent than you in certain other respects — pieces about toxic pollution and global warming gasses, say. And yes, there are always choices about who to address, which projects to work on, how to address them. The major problem with global warming gasses is that they contribute to a global total — it’s usually not a problem of local effects. But they are often released along with co-pollutants that do have local effects, that can cause asthma and other health conditions. Facilities that release these co-pollutants are disproportionately located in poor and minority areas in the U.S., because more powerful people have greater control over what gets put in their neighborhood both directly (through permitting, zoning etc.) and indirectly through economics. In the U.S., there are groups that work on what’s called environmental justice who have asked people to at least mention these co-pollutants and their disproportionate effects on poor people and people of color when they talk about global warming gasses.

So when writing something that gives people information about global warming gasses from fixed facilities, one can ignore the co-pollutants or, at the cost of more work, one can include them in some way. There’s not really a single answer that applies to all situations, but denying that there’s a choice there at all seems strange. I think I’ll wait and see whether you even understand this argument before I go any further.

The other common response is that this is a free blog and no one should tell bloggers what to write about, and that if I want you’ll fully refund the money I spent on Crooked Timber subscription fees. By which logic no one should complain about what Rush Limbaugh says: radio waves come to you for free! You can always change the channel if you don’t like it, right? The response is that Rush Limbaugh has a huge audience and you don’t — but that’s the relative prominence bit all over again.

Shelby is not quite as bad an opinion as it seems (purely from a reasoning vantage), once one understands two things:

(1) the compromise approach the opinion takes between the broader, less incremental approach that one element of the majority wants to take, and the narrower, incremental approach that another element of the majority wants to take;
(2) the somewhat ambitious use of the compromise approach to articulate a plausible, but hitherto little used, federalist principle – one which makes no difference to the outcome of this case, imho.

Shelby can be confusing. As a compromise opinion, it nods in the direction of the “conservative” wing’s views of Section 5 and preclearance generally, referencing the extraordinary nature of preclearance as a federal law, and the extraordinary conditions which, in conjunction with the 15th Amendment, justified it. It notes, emphatically, the degree to which those conditions have changed since the VRA was first enacted. And all of this would seem to lead to a clear conclusion, one that stretches beyond the question presented in the case; it leads to the conclusion that the preclearance mechanism as a whole, not simply the coverage formula, is no longer justified, and must be struck down.

But instead Shelby coyly refuses the invitation to that sweeping judgment. By asking whether the actual selection criteria used for preclearance are rational, it can avoid the broader question concerning Section 5. So, noting that conditions have changed dramatically, while the formula has not, noting that some of the criteria used by the formula are several decades old, the Court holds that the coverage formula itself is not a rational means of selecting some states and not others for preclearance. Is there any place for preclearance today? That’s a question left, appropriately, unanswered.

Now, the Court can find the coverage formula not sufficiently rational without invoking an “equal sovereignty” doctrine. The Court’s reasoning about the formula’s lack of tailoring to current conditions stands on the facts about the formula and current conditions as articulated in the opinion, not upon whether states are equally sovereign.

Nonetheless, there it is, and prominently so. What is it doing there?

One argument is that it justifies the Court’s closer scrutiny of the formula. Without the extraordinary departure from the principle of equal sovereignty, the Court, if it is to remain consistent with precedent, must treat the decision of the legislative branch with greater deference. On this account, without the introduction of equal sovereignty the outcome would be different: the deferential treatment of the dissenters would guide the Court to their alternative conclusion.

But the greatest point of consistency between Katzenbach and Shelby is the description of preclearance as an extraordinary remedy, which it undoubtedly is. That would seem to be enough to justify a closer look at how Congress is using it. There’s no need for a principle of equal sovereignty to invoke closer scrutiny, and indeed the Court itself gives both justifications (preclearance as extraordinary remedy, and departure from equal sovereignty). So in fact the principle is unnecessary to the outcome of the case, though this does not mean of course that it is inapplicable to the case.

However, the principle is important to the majority. The principle is plausibly embedded in their view of American federalism, and the facts of the case as, imho, the majority reads them, do provide a second illustrative occasion to state the principle explicitly and note its relevance.

“Do you have an objection to the post or not? If so, what is it?”

My original objection was to the idea that Adler was doing us a service by coming up with his explanation. But, in terms of your post itself, I think that you were looking for something to critique and took the only thing available, and in the process shifted the Overton window the wrong way.

In more detail, here’s what you wrote: “I decided to see what the Volokh folks have had to say about that particular decision. Not a lot, it turns out. But here’s Jonathan Adler […]” OK, just before this last sentence is where you should have stopped. If the Volokh folks haven’t had much to say, perhaps there really isn’t much of a defense to be made. But you were looking for a cookie in the cookie jar and you pulled out the last one because it was there, even though ants had been eating it. Looking around for a defense and engaging it even though it doesn’t look very good is not an exercise that permits people to handle good right-wing arguments. It’s just something that you do because you want to eat that cookie. And in the process, it reopens the idea that there must be something that makes this decision possibly OK because people are still arguing about whether it’s OK.

But are you sure that you’ve always bought “Don’t shift the Overton Window the wrong way”? Because referring to “it might turn out to have been on balance a waste of time” isn’t how I’d put it. I certainly have no objection to wasting time, and would like a lot more posts on Jack Vance or influences of Bruno Schulz on China Mieville or J K Rowling or something. My objection is that shifting the Overton Window the wrong way is actually harmful. It’s minor harm because you have a minor audience, but it’s some Puritan objection to time wasting as such.

I think that you were looking for something to critique and took the only thing available, and in the process shifted the Overton window the wrong way.

This still seems totally backwards to me, and I think the torture analogy (in 91) is misplaced (though I won’t defend this claim just now). I think a better analogy would be anti-abortion activism or gun laws or any of the myriad areas where the Right has made incremental but steady progress for decades. It seems to me a much more common pattern than what you’re suggesting that there’s some initially ridiculous seeming idea on the “fringes” which you think you might just ignore or laugh off, but partly as a result of the ignoring, it becomes over time a much more acceptable idea—acceptable in or to the “mainstream” that is.

Ok, that’s extremely sketchy, and I’ll try to think of specific examples. In general though, it seems to me totally wrong to suggest that you can move the Overton window in your preferred direction by ignoring the people who are expending their energies trying to move the same damn window the other way.

js, I’d be happy to just have people acknowledge that there’s something conceivably going on besides me complaining for no reason about what people choose to post about. If people accept the basic idea, it’s not so bad to have them tell me I’m wrong in this case.

But I think that you’re wrong in this case. This isn’t some initially ridiculous and poorly known thing on the fringes. It’s a well-known decision by the Supreme Court that was promptly condemned by the President, civil rights heroes, jurists etc and initially defended by almost no one. Right now it’s about where you want it to be, and not because no one has heard of it.

Now there are two basic kinds of stories that can continue about the decision. One of them is ongoing legal arguments about whether it’s bad or not. Those can only normalize it as a topic about which, unsurprisingly, people disagree on tribal lines. The other kind is about efforts to help disenfranchised people to vote, and to otherwise work against the decision. Those can only help, because they start from the known point of the decision being bad and present the conflict as what it is — not a conflict between two legal theories, but between people who want everyone to vote and people who want to reinstate barriers to voting using legal trickery.

Ignoring people can’t always be done, but when you can do it, it’s more effective than anything else. When a U.S. administration wants to go to war, they don’t come out with a list of arguments against pacifists. At most there’s a quick demonization, but mostly they pick the rightmost opinion to argue with that they can. The conservatives in America have no real arguments against socialism, and why should they? At most they have arguments against moderate left-liberalism which they call socialism, but they don’t make the mistake of actually engaging anyone they don’t have to.

And the most influence that a grouping of intellectuals can have that doesn’t have a star theory-maker is the gift of respectability. Hardly anyone actually changes their mind about anything due to argument. Instead, what happens as that there are loose social connections that confer importance on each other — when someone critiques a Volokh post, that’s a social signal that Volokh posters are worth listening to. If people on CT spent most of their time arguing with Jacobin writers and ignoring people to the right except for brief dismissive remarks, insofar as CT’s ten-year history has any cumulative influence the whole universe of people who read these things would start to take it for granted that all of the intellectual interest and action was on the left.

And I’m not calling for some kind of falsified pocket universe — if the right really did have intellectual interest and action, I’m not calling for the ostrich-head-in-sand maneuver. But it doesn’t. In posts like this, people like Holbo are animating a corpse.

Hmmm… I’m not an expert on Overton windows, but my understanding of what they are entails that they are far too big and heavy for a single person to move them at all – in the right or wrong direction. Especially in a single blog post. But if the underlying point is to minimize publicity for a bad legal decision, then you seem as guilty as anyone Rich. I suggest that your own principle in this case requires you to stop going on about it already.

“I suggest that your own principle in this case requires you to stop going on about it already.”

If only anyone had ever thought of this clever objection before. Then I might have already addressed it in the thread.

It’s not just about race. They’re going after college students too.

It’s just mostly about race. And it began there.

Is there any empirical evidence that would change your mind? Let’s start with an unscientific survey. Did anyone who read this thread appreciably change their pre-existing opinion about the merits of the Shelby decision? I looked over the first 50 comments again, and saw zero cases of someone not confirming their previous opinion. This includes both Adler and Holbo, unsurprisingly.

P.S. Law isn’t math.

So what’s reading someone else’s analysis of the Shelby judgement supposed to be teaching us?

Note to Collin: there are actually quite a few people who have never read a judicial op, never will, wouldn’t know how to if they tried, and but yet still have political views, want the Court to “get the law right,” etc.

(I don’t think I had *ever* read a Supreme Court decision before I went to law school. Maybe some excerpts in a philosophy of law class at Tulane.)

Anderson or Mark Field, did you really learn how to defeat new arguments?

I am still waiting to *see* an “argument” in favor of Shelby County …

But actually, at the long Adler thread at the VC, I did find people trying to argue in favor of the decision, some of which sent me back to it and helped me find flaws in the op. For instance, the Ginsburg dissent, excellent tho it is, didn’t confront the “exceptional circumstances” line from Katzenbach, so I went back to Katzenbach, saw that line in its context, and recognized that the Shelby County op was even weaker than I’d realized.

Subjecting one’s beliefs to argument does often reveal flaws in those beliefs, or else strengthen them by providing additional support. I would have thought that an uncontroversial proposition.

… An aside: at the Volokh blog, Will Baude is now on board, and Adler links to a couple of his posts on Shelby County (whilst also linking to this post). Even Baude concedes he would have voted that Section 4 survived under rational-basis review.

You shifted the Overton Window the wrong way because any publicity is good publicity.

I’m going to be suspicious of any argument that says that thinking out loud about an important matter of public policy is an inherently bad thing.

In this particular case, once the Supreme Court issues an opinion, I think the Overton Window can be considered well and truly shifted.

The legal rationale for Shelby is an important matter of public policy – and not just because of its voting rights implications, but because of its jurisprudence implications. Respect for the law has been an important constraint on the Justices’ behavior – there have really been only a select few cases where they’ve just thrown the law out the window.

This turns out to be one of those cases, and that’s important, and that’s not a piece of information that people just know without some source of information. Debating the legal basis for this is, for the folks interested in the legal basis, an effort to drag the Overton Window back. Adler already has the Overton Window on his side.

If the Roberts majority says that “equal sovereignty” is a part of the highest law of the land, then it damn well is.

With Obamacare, people ignored the hell out of the rightwing arguments that it was unconstitutional. Then an important piece of Obamacare was found unconstitutional, and the rest of Obamacare was a vote away from being thrown out. Same thing with the current rationale behind Second Amendment jurisprudence, which at one time was considered ludicrous, and is now the law of the land.

Ignoring people can’t always be done, but when you can do it, it’s more effective than anything else. When a U.S. administration wants to go to war, they don’t come out with a list of arguments against pacifists.

First, the pacifists weren’t ignored, but were, rather, demonized. But suppose they had been ignored, what then? It would have been the result of the political impotence of antiwar sentiment – not the cause of it. People who don’t matter can safely be ignored. Unfortunately, when it comes to the law, a majority of the Supreme Court can’t be ignored.

Did anyone who read this thread appreciably change their pre-existing opinion about the merits of the Shelby decision?

My opinion was pretty well formed by the time I read this post, but only because I’d read others like it. If a majority of the Supreme Court says that “equal sovereignty” is a key principal of the law, then I’m inclined to believe there is some legal basis for that. Now I know something about how thin that basis is.

So the people involved in the debates get better at them. But no one can actually win the debates.

It all comes back to archy and the spider and the fly. But even if I concede archy’s point (which I’m not inclined to do), then I’d still argue that literature improves me.

at least blogosphere-wide consensus that the Shelby decision was beyond the pale of reasonable discourse

The aide said that guys like me were “in what we call the reality-based community,” which he defined as people who “believe that solutions emerge from your judicious study of discernible reality.” … “That’s not the way the world really works anymore,” he continued. “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors…and you, all of you, will be left to just study what we do.”[2]

You don’t have to care about “reasonable discourse” when you are creating the facts on the ground. Bush became President for eight years, we invaded Iraq, domestic government spending is getting cut, black voters will be disenfranchised. Tell me why I am supposed to care about arguments? Right does not make might.

And having just finished Randall Collins on socially-constructed science & philosophy, of course Rich is right about filling the attention space and the law of small numbers.

Bush v. Gore has never been legitimated other than in the “the Supreme Court decided it, so we have to live with it” sense.

I don’t think Bush v. Gore supports your argument here. The legal implications of that ruling were hardly ignored by various commentators, and that commentary had the effect of undermining the legitimacy of that ruling.

By way of contrast, look at the Florida vote count. By any sensible accounting, Bush lost in Florida. However, that fact was largely ignored in public commentary, and some amount of legitimacy was conferred on Bush’s election because of that.

The Supreme Court is political, but it is one of the entities that is able to evade the strict sense of the Overton Window — it can make political decisions outside it.

In this instance you quote, I wasn’t talking about the effect of the Window on the Court, but the reverse. The Supreme Court, being what it is, has the opportunity to move the window around somewhat. “State sovereignty” is now part of the national debate, no matter how aggressively we ignore it.

That said, you’re right that I think causation does work the other way, too.

It seems likely to me that Roberts considered the parameters of acceptable debate when he refused to fully overturn Obamacare. (I get that you think discussion of Roberts’ motives is inappropriate, but Roberts clearly has motivations, his motivations have an effect on his actions, and saying that we ought not analyze his motivations is tantamount to saying that we ought not analyze his actions. Which, come to think of it, seems fairly close to what you’re saying.)

The idea that we should all agree not to think about something is inherently suspicious to me. It’s an authoritarian impulse.

And sure, authoritarians can get things done sometimes. Smug liberals mock Rove for his dismissal of the reality-based community, and I think you are correct if you are saying that Rove got the better of that argument. But he and his gang (and the Supreme Court majority) were/are in a position to create reality. Our role is necessarily different, and will continue to be until our faction takes over (and hopefully afterwards, too).

Even more briefly, I think that “The idea that we should all agree not to think about something is inherently suspicious to me. It’s an authoritarian impulse.” is kind of a straw man. I’ve repeatedly tried to write, above, that I’m not saying that anyone has to give up the life of the mind, that it’s fine to argue against someone worth arguing with, etc. But there are choices to be made and care taken in how one does that.

Rcih at 131 (emphasis added):

I’m not saying that anyone has to give up the life of the mind, that it’s fine to argue against someone worth arguing with, etc. But there are choices to be made and care taken in how one does that.

As Benjen Stark would say, nothing before the word “but” really counts.

That said, I take it, Rich, that you would not consider Adler to be “someone worth arguing with.” I don’t know who that leaves, among even the half-hearted defenders of the Chief Justice’s opinion, that you would consider to be worth engaging.

130:…the only difference being that bob is pro-authoritarian.

It is interesting that you read 127 that way, but then, around here Nietzsche is being read as authoritarian. Sigh.

Dude, you are projecting, because you are the one who believes there can be a discourse authoritative because of its pure form or substance. I pretty much have always believed reality was socially constructed, whether the tools are logic and evidence or appeals to Baal.

“acceding to your evident desire to make a more abstract, less empirically-grounded approach”

What? I looked through comments and pointed out that no one who’d commented had appreciably changed their opinion. I asked people who said that they’d learned from the post what they’d learned. Have you done a study, or something, that throws my empirically puny efforts into the shade?

I’ve also now looked through all the comments on Volokh. You will be relieved to hear that, as far as I can tell, no one in comments has mentioned your post at all. Adler linked to it, but that’s as far as I can detect the only mention that it’s gotten. A quick Google search didn’t turn up any other links to it. Empirically, I agree that this post has not detectably had any effect.

So, am I cast down by this empirical disproof of my theory? Well, I’m certainly willing to give you a pass on this post. I have good reasons to think that what I wrote about operates as a general principle, and I think that your post has the kind of characteristics that are likely to trigger it. But since evidently noone not here mentioned it, you have the same freedom of futility that I do. You can say whatever you like without risking a bad effect if you have no effect.

Are there cases on CT where people have engaged bad arguments to bad effect, because they were noticed? Yes. See Henry’s apology about Stephan J. Dubner. My previous remarks about being careful about who you engage with are, I think, generally true, although they clearly don’t matter if what you write is not read outside of a small group. A book event draws more notice than a single post.

And by the way, I still don’t know why you write about “converting people who were previously skeptical of Shelby into credulous Adlerheads”. That’s not the same as being in danger of “swaying the vast sea of undecideds in the wrong way” at all. Undecideds are presumably not starting out as being skeptical of Shelby.

LFC @104:

Well, Posner overstates the case I think (shocking, I know). The idea that states are equally sovereign exists in constitutional jurisprudence, but it’s a fairly quiet idea. By quiet, I mean that it has received little development and little application. Consequently there is little explicit jurisprudence, afaik, that would guide an application of the idea in a case like Shelby.

However, the principle is also arguably a basic part of the federalist structure of the Constitution. It’s also usually written into an act admitting a new state, in which the new state is admitted on an equal footing with all other states. Of course, a sentence explicitly stating the principle was actually rejected during the Constitutional Convention (I believe), but, nonetheless, it’s there in the structure, in some cases, and in the acts admitting new states.

The novelty is the application of that principle to a case like this. It’s not a novelty in the sense of a surprise – here’s a quote from the oral arguments during Northwest Austin in 2009, featuring Justice Kennedy asking about the imposition of preclearance requirements on some states and not on others:

JUSTICE KENNEDY: This is — this is a great disparity in treatment, and the government of the United States is saying that our States must be treated differently. And you have a very substantial burden if you’re going to make that case.

And that’s a point that Kennedy returns to again and again. Here he is in the oral arguments in Shelby, noting his objection to the federal government’s argument that they reverse engineered the formula to cover the desired jurisdictions:

JUSTICE KENNEDY: …I don’t know why under the equal footing doctrine it would be proper to just single out States by name, and if that, in effect, is what is being done, that seemed to me equally improper. …

Now, of course, principles in law, particularly vague and malleable ones, are given shape by application; and where we have, as we do here, a principle that has received little application, it remains highly malleable – in significant part, unformed.

So it’s a principle of weak authority, and one unlikely to satisfy anyone skeptical of the actual outcome of the case.

It’s real utility to the majority here is to enable them to limit its factual examination. Rather than asking whether preclearance as a whole is sufficiently congruent and proportional to the present problem, the majority can simply ask whether the coverage formula is sufficiently rational, given the problem and the remedy it is meant to connect. And it’s fairly easy for them to say no.

Let’s be honest, the formula is pretty horrible. If a state used any voting test or device (as described in the statute) as of November 1972, and if less than 50% of persons eligible to vote in November 1972 were registered to vote or if less than 50% of persons eligible vote actually voted in the Presidential election of 1972, then the state (or political subdivision) is covered by the preclearance process.

That’s an absurd formula to use in 2013 as a means of enforcing the 15th Amendment. It’s so difficult to defend, in fact, that the usual recourse is in fact to say that while the content of the formula itself may not seem to make much sense, in fact it captures states and political subdivisions where “second generation” discriminatory practices occur. And so one might argue that these “second generation” practices are more likely to occur where “first generation” practices occurred, i.e. in the states covered by the original formula.

Now, in some contexts, that might be sufficiently rational. Sure, it’s a little weird that Congress is using a formula that doesn’t reference anything that occurred in the last 41 years. And it’s a little weird that there’s nothing about second generation discriminatory practices or what they are in the statute; and it’s a little weird that Congress hasn’t changed a formula designed to capture states that were using various tests and devices to deny access to the ballot in 1972 – but hey, I can follow their reasoning (no matter how ridiculous it might be) so it’s rational. Approved.

But in this context conceivably rational doesn’t cut it. This isn’t an area which is squarely and solely within Congress’s purview. The Court has found again and again that preclearance is an extraordinary remedy, that intercedes preemptively in an area ordinarily within the sovereign power of the state. We are therefore at the border of what Congress may enact to enforce the 15th Amendment – and the question of where that border is drawn is for the Court to decide.

Now, does the Court actually say what the level of review is? No. But straying from a well designated “levels of scrutiny” approach isn’t new. Clearly there’s a heightened level of rational scrutiny at work. And there’s heightened scrutiny because Congress is using an extraordinary remedy, which inserts the federal government deeply into the sovereign powers of some states, and not other states.

Okay, so what’s the majority’s underlying concern? The emergency conditions – long-standing emergency conditions – in which certain states evaded, for decades, the clear command of the 15th Amendment at last gave rise to an effective remedy in the form of the Voting Rights Act. The extraordinary step of preclearance was “appropriate” or, to use today’s phrase of choice, “congruent and proportional,” because extraordinary conditions required its use; decades of voter-rights evasion required its use; the 15th Amendment, for God’s sake, demanded its use.

State sovereign powers were rightly interfered with, pushed aside, and told to take a number and wait to be seen for federal inspection. All constitutional, for the extraordinary conditions made appropriate extraordinary remedies.

But 40 long years later, those extraordinary remedies – with all the intrusions into state sovereign powers – remain. And Congress, far from treating these extraordinary remedies with any kind of care, has in fact chosen repeatedly not to change them significantly. For reasons which the majority suspects are political – so do all of us, no? – Congress has no interest in changing the formula.

So when do these extraordinary measures become inappropriate? The majority doesn’t say. Maybe justifying conditions still exist. But the majority can and does say that the coverage formula isn’t sufficiently rational, given the power Congress seeks to extend with the formula as its guide.

And the principle of equal sovereignty? Well you can here it in Kennedy’s questions, and if you read back, you can see it in Rehnquist’s dissent in City of Rome – treating states equally, as equally sovereign democratic entities, who together furnish one of the unifying threads of the nation, is actually a real concern for these guys. It’s not just window dressing for racial animus or an effort to help out the boys in the political branches. And the principle fits in well here for the purpose of looking just at the coverage formula, and not at Section 5 generally. So those who felt it had been neglected wanted it used, and perhaps some felt that “one case at a time” meant that a full debate on Section V would be more appropriate in another case – and so the principal of equal sovereignty becomes the focus of concern for the majority in this case.

But, really, they would apply a heightened standard of review when looking at a mechanism like preclearance regardless of whether equal sovereignty ever received its invitation to the party.

For my own part… in 2013 the coverage formula is atrocious, preclearance really is an extraordinary remedy from a constitutional vantage, and the Court cannot treat this with the highest level of deference that would be implied by the most loose version of a rationale basis test.

Should the Court have let it pass under an appropriate standard of review? No, but it’s a reasonably close call. And that’s not to say that an updated formula could not pass – I don’t think it would be terribly difficult to devise one, frankly – but letting that formula stand essentially unchanged, using registration rates and tests and devices in 1972 as a coverage formula in 2013, is just a step too far from the level of care with which an extraordinary remedy like preclearance must be used. Quite frankly, I think that the majority simply couldn’t let this one go by.

Rich, following up your ‘no such thing as bad publicity’ line, and acceding to your evident desire to make a more abstract, less empirically-grounded approach, let’s distinguish strong and weak Barnumism, as it were.

I think it’s appropriate here to accede to Rich’s “evident desire,” but I don’t think you actually do that because you ultimately ask him for a rigidly empirical answer. And Rich, likewise, is failing to see the way that specific incidents can – and can’t – illuminate his argument.

On a broad, abstract level, we all agree: One can legitimize a bad argument by engaging it.

So how to we identify where that problem occurs? Overton’s insight (as I understand it) is that the shift in the framework of debate is subtle, and tends not to be noticed by the participants. So asking (as Rich does) for specific examples of John changing someone’s mind isn’t germane; nor is John’s similar request for evidence of reversals of position. That’s not what the Overton Window is about.

But how do we test Rich’s theory, and John’s counter-argument? I’ve already addressed Rich’s argument, explaining the way I’ve been influenced by commentators such as John. No, I had no Road to Damascus epiphany, but before reading about the decision, I was much more inclined to credit Roberts’ opinion with some legitimacy, as a matter of law. The framework of the debate, for me and people like me, shifted in the right direction because folks like John are doing the hard work of exploring Roberts’ legal argument and other arguments related to it.

But what does it look like if Rich’s concern is valid in this specific case? I propose that it looks like this:

Why would anyone insist it is entirely racism? I think people talk a lot about that factor, understandably. But what makes you think they think that’s all there is to it – rather than just a major factor?

This is how the Overton Window moves. Is Adler’s argument racist? Earlier in this conversation, I tried to distinguish between racism and enabling racism, but in the context of the broader conversation, that distinction is meaningless.

Vonnegut once offered this riddle:

Q: What’s the white part of birdshit?
A: That’s birdshit too.

Adler and Roberts (and Andrew F.) are engaged in racist apologetics, and racist apologetics is racist. Nobody has offered a plausible non-racist explanation for Roberts’ decision.

Now I understand John’s reluctance to go around calling people racists. It’s a rude word, and even African Americans, who are very well-positioned to identify “subtle” racism, don’t call it out very often. Plus, Jay Smooth, etc.

Where I differ with Rich is that – beyond that single comment – I don’t much evidence that anyone is fooled by Adler here (though Adler has an accomplice or two). I offered my comment 47 only because I thought it needed to be put on the record as a reminder, not because I thought I was elucidating some deep insight that others had missed.

Rich: “But no one can actually win the debates”

You keep saying that. You dont’t back it up.

politicalfootball @143: Now I understand John’s reluctance to go around calling people racists. It’s a rude word, and even African Americans, who are very well-positioned to identify “subtle” racism, don’t call it out very often.

Rudeness aside, an accusation of racism is a conversation-ender. It terminates dialogue.

It’s a bit like Martin Luther concluding, sometime in 1519 or so, that the papacy was Anti-Christ. As long as Luther was one Christian scholar arguing about theological points and religious practice with other Christians, he had no problem meeting with bishops and cardinals, exchanging correspondence with the pope’s theologians, etc. He could still contemplate compromise, or persuasion, or working together toward a mutually agreeable formula. But once he concluded that the institution of the papacy was Anti-Christ, all that stopped. From Luther’s perspective, one does not compromise with Anti-Christ. One does not seek to work with Anti-Christ toward a new synthesis. Instead, Anti-Christ must be shunned, fought, crushed.

“If the entire world doesn’t read John’s post and the comments thread, then John’s post is objectively pro-racist!”

” If people are fooled by Adler elsewhere, the objection to engaging him in serious discussion on the merits of his argument before or without calling out the racism stands.”

These two inferences are not similar or equivalent, and are not even close. To think the first one is the same as the second takes significant reading miscomprehension.

I will try one more time, more slooowly.

Politicalfootball claimed that “I don’t [see] much evidence that anyone is fooled by Adler here.” In the context of the discussion of Rich’s argument, fooling someone *here* is not the important part. The important part, as Rich acknowledges in 140 and I also pointed out earlier, is that people elsewhere, people in general, start considering the argument legitimate because of discussions taking place “over the internets” among “respected academics” on the merits of the argument. These people need not be CT readers for this to happen. The CT discussion will be one of potentially more similar discussions that make the argument respectable. Hence, it seems important at least, if the discussion were to happen, to qualify it by pointing out first that, in politicalfootball’s words, it is “racism apologetics”.

OTOH, the inference by Anderson makes I don’t know what point apart from trying to paint the above argument as ridiculous (and the poster as ignorant).

people elsewhere, people in general, start considering the argument legitimate because of discussions taking place “over the internets” among “respected academics” on the merits of the argument.

People *start* considering the argument legitimate? Out here in the real world, a decision by the Supreme Court of the United States starts off with presumptive legitimacy. If we didn’t discuss it, people would be much freer to go around repeating things like “Section 4 was based on a 40-year-old formula, so there’s no way it could pass a rational-basis test,” etc., because they wouldn’t see the alternative argument …

Further, in this particular case, the argument against Shelby County v. Holder is “the argument isn’t even respectable.” How, by expressly taking that position, do we risk “making it respectable”?

But, by your own logic, debating the merits of debate with me would make debate seem respectable, which is contrary to your position.

… LOL at “respected academic.” I am neither. Well, a doctor of law ….

If I were you I’d give up too, vasvas. They don’t understand the argument and they never will, and they’ll just keep repeating things addressed 100 comments ago.

Because my opinions are valuable to everyone, I will remark: re: “calling people racist” that I strike a middle ground b/t PoliticalFootball and PubEditor. I had no trouble calling Shelby County v. Holder “neo-Confederate,” and though I think its racism is more a means than an end (the end being Republican power), “racist” is accurate enough.

OTOH, in directly discussing the op with one of its supporters, and in debating in general, I don’t find it advantageous to my argument to call my interlocutor racist. As PubEditor says, that’s a discussion-ender, and when I finally end up calling someone racist, I’m ending the discussion.

Rather, if useful to the argument, I can point out the racist implications of my interlocutor’s position, taking for granted that he does not want to come out & endorse racism (as, indeed, most people don’t, whether they’re racist or not). Cf. Socrates in the Gorgias (and the trouble that Gorgias gets into).

…. Now that I think about it, I’m going to have to ponder whether Rich isn’t Callicles to Holbo’s Socrates.

As PubEditor says,

Ah, but politicalfootball also says this, though perhaps a bit opaquely, in the second-last paragraph of 143. I certainly agree that appropriate choices about the timing and manner of discussions of racism are context-dependent.

Anderson mentions Callicles and Gorgias and whatnot without elaborating or providing links, counting on us to be sufficiently well-versed in the classics. That was also my thinking when I cited Jay Smooth.)

Sorry, PF. The Wikipedia article on the dialogue has a good crib. Basically, Socrates guides Gorgias into agreeing with him, and Callicles objects that G was just afraid to contradict public morality, argument is a waste of time, philosophy is for kids and dimwits, and it all comes down to force. The online translations are typically the stuffy Jowett version, but I highly recommend the (short) dialogue, which among other highlights has Callicles folding his arms and leaving Socrates to argue with himself.

I don’t expect Andrew F to argue in good faith on this issue, but “rational” is not the same as “wise,” “well adapted,” or “smart.” I take it to be analogous to the degree of rationality required to sustain a JNOV, if not even more lenient.

Pub: yes, but AF seems unclear on that concept.

Offhand, I would like to see a list of statutes ruled unconstitutional under rational basis review, with the Senate and House votes on each. A unanimous statute could still flunk, but how often has that happened, and what did those statutes look like?

I’m not sure where in his opinion C.J. Roberts indicated the level of review being applied. (I know it wasn’t rational basis.) One might be inclined to say that the failure to clearly identify the level of review is one more weak aspect of the majority opinion.

“But they didn’t evolve any set of principles that would, applied jurisdiction by jurisdiction, capture just the states captured in the old formula.”

And that’s legally relevant how?

Since at least two districts were able gain exemption, I think that you’re also factually wrong.

“Siri, what level of review did the majority apply when analyzing the VRA in Shelby County v. Holder?”

“I don’t know how to answer that question.”

Anderson,

On whether preclearance remains justified: perhaps, but that’s a question that the majority purposefully avoided. An opinion focused squarely on Section 5 would, I think, address more forthrightly some of the animating concerns of the majority’s opinion. And it would, I suspect, get to the same place, only with greater controversy.

As to the bailout provision, my take on it aligns with Pub Editor. And I’d add that the difficult qualifications of that provision are what render, in part, the coverage formula itself so important.

In any event, if a jurisdiction really does continue to require preclearance, then the bail-in mechanism in Section 3 of the VRA can be used.