Adler on Shelby

by John Holbo on July 9, 2013

After my posts on Shelby, a few weeks ago, 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, explaining how he thinks left and right tend to view the issue differently. Seen from the right, the decision makes sense (although Adler does not endorse it explicitly):

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 argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified by extraordinary conditions. This is because the 15th Amendment only authorizes Congress to “enforce” its protections through “appropriate legislation.” Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required. In the majority’s view, justifying limits on states in 2006 based on conduct from the 1960s and early 1970s fails this test — it does more than “enforce” the 15th Amendment’s guarantees, and therefore exceeds the scope of federal power. Although the majority never says so explicitly (perhaps intentionally), this imposes limits on the 15th Amendment’s enforcement power similar to those imposed Section 5 of the 14th Amendment. the enforcement power.

Let’s focus on this sentence: “The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified [constitutionally] by extraordinary conditions.”

I think we need ‘constitutionally’ in there, for clarity. But consider what we can do once ‘extraordinary conditions’ has been pocketed as a thing that makes things constitutional. This is, for better or worse, an answer to my original question: what sort of ‘rational standard’ is operating in Shelby?

I wrote in my first post:

It seems like the Supremes are applying a very high, rational-basis-with-extra-bite standard. It’s not enough that Congress be exercising powers it is acknowledged to have in a way that might make possible sense. It has to be a ‘good’ law – effective and ‘right’? But they can’t possibly apply that standard of judicial review to everything Congress does. So what is the elevated standard they are holding Congress to, in this case, and what class of cases need to meet this elevated standard, not just the usual ‘pass an ineffective or counter-productive law if you want’ bog-standard rational-basis test?

Adler’s answer provides a way of saying that the Supremes aren’t applying such an awkwardly high standard now. But saying so, in this way, means conceding implicitly that they were applying it in earlier decisions, when they allowed sec. 4 to stand (and now, to the extent that Shelby explicitly says sec. 4 used to be ok.) Question: when should the Supreme Court let the legislature do something (let’s be frank about this) unconstitutional? Answer: when two conditions are met. 1) there is an ‘exceptional crisis’; and 2) the judges judge that the legislative response to the crisis is not just barely rational, in the usual dumb way, but actually the ‘right’, effective response.

There’s something a bit Schmittian about this line, looks to me. At any rate, it doesn’t seem to fit with Adler’s own view of what the view from the right looks like.

The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people.

But if the Supremes, like Moses, can part that sea at need, in a time of crisis … ?

What would Adler say? I suspect he would say I’m ignoring how there is really is a balancing act here, hence more restraint. “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 – but it seems, if I understand him, a major concession to a standard view from the left, which Adler is saying is not the view from the right (so what’s it doing in this view from the right?) One standard way of construing so-called ‘living constitutionalism’ is: the Reconstruction Amendments amounted to a tacit refounding. The whole Constitution is kind of a new beast, in virtue of adding a few things on. If you are saying that the Reconstruction Amendments change the meaning of the enumerated powers …?

Well, I’ll leave it at that.

{ 172 comments }

1

Mark Field 07.09.13 at 4:03 pm

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….”

2

Anderson 07.09.13 at 4:20 pm

If for some reason anyone were curious as to my views on this despicable decision, the Adler thread is rife with them. But I think this one bit may be worth repeating.

The Roberts op hammers on one clause in Katzenbach: “exceptional conditions can justify legislative measures not otherwise appropriate.” That language was then used three more times in the majority op to hammer in its thesis that Section 4 was an otherwise “inappropriate” statute permitted only by “exceptional conditions.” But look at the context:

The Act suspends new voting regulations pending scrutiny by federal authorities to determine whether their use would violate the Fifteenth Amendment. This may have been an uncommon exercise of congressional power, as South Carolina contends, but the Court has recognized that exceptional conditions can justify legislative measures not otherwise appropriate. See Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398; Wilson v. New, 243 U.S. 332. Congress knew that some of the States covered by § 4(b) of the Act had resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees. Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself. Under the compulsion of these unique circumstances, Congress responded in a permissibly decisive manner.

(Boldfacing added.) So the question for the Court would have been – had the majority been writing a serious opinion – do such “strategems” and “maneuvers” continue to be attempted? And as shown in Congress’s findings, the answer is “yes.” But the majority was not actually conducting a legal analysis; it was ratifying its own act of judicial legislation.

3

Anderson 07.09.13 at 4:24 pm

“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.

4

Rakesh Bhandari 07.09.13 at 4:41 pm

Is there someone other than Adler who seems to know little about this important topic that we should be discussing and debating?

5

John Holbo 07.09.13 at 4:45 pm

Thanks for that quote from Katzenbach, Anderson. I didn’t know anything about that decision and hadn’t looked into it. It’s worth distinguishing between ‘exceptional crisis’ – all the ‘constitution not a suicide pact’ stuff – and the sort of thing the passage you quote is about: how to make federal legislative rules to deal with cases of people in state legislative power who are – who are we kidding? – trying not to follow federal rules.

6

John Holbo 07.09.13 at 4:49 pm

“Is there someone other than Adler who seems to know little about this important topic that we should be discussing and debating?”

Sorry, are you asking whether there’s someone who has written a more cogent defense of the decision than he has? If so, I’m not aware of it. Not a lot of folks on the right seem enthusiastic about it, and inclined to take up the defense. A few have said they think it’s bad, for roughly the reasons I’ve given.

7

Jonathan H. Adler 07.09.13 at 4:58 pm

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

8

David Kaib 07.09.13 at 5:02 pm

Roberts doesn’t really treat this as an issue of acting beyond granted power. It he did, he’d have to give us some sense of what the boundaries of that power were. He didn’t, because his argument is framed around the violation of an imaginary limit that has no textual basis. At best Adler is offering a different argument for why the conclusion in Shelby is correct (not that I buy that either).

9

Jonathan H. Adler 07.09.13 at 5:08 pm

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

10

Jonathan H. Adler 07.09.13 at 5:10 pm

@David Keib:
I agree with you that the reasoning of the opinion is underdeveloped. To say it’s not one of the Chief Justice’s better opinions is an understatement. I assume that was due to differences among those who joined the opinion. For instance, I suspect some of the justices in the majority would be ready to throw out preclearance altogether, while others might be content were Congress to provide a more defensible coverage formula.

11

Anderson 07.09.13 at 5:26 pm

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 ….

12

David Kaib 07.09.13 at 5:35 pm

Jonathan @10: I suspect you are right about that.

13

Mark Field 07.09.13 at 5:46 pm

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.

14

Ben Alpers 07.09.13 at 5:46 pm

Does Adler think that the Supreme Court could, say, invalidate as unconstitutional a portion of the budget of the U.S. Navy if it felt that a particular item for which funds had been appropriated was not necessary to “provide and maintain” the Navy? Or is there something different about the explicit grant of powers in the Fifteenth Amendment that makes it different from the explicit grant of powers in Article I?

Like Bush v. Gore, Shelby County seems not only to be nonsense, but also to involve constitutional “principles” that the Court itself has no interest in consistently applying (at least the Court in Bush v. Gore was upfront about the one-use-only intent of its ruling).

15

Anderson 07.09.13 at 6:01 pm

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.)

16

Jonathan H. Adler 07.09.13 at 6:39 pm

Anderson @11 –
If you mean “rational basis review” of the sort applied to exercises of the Commerce power under Lopez and Morrison, we agree — and the holding of Shelby County would be consistent with that. Yet when many invoke “rational basis” they are talking about the sort of review we see in cases like Williamson v. Lee Optical, which does not require any degree of fit, let along anything approaching congruence and proportionality.

Mark Field @13 –
Your comment illustrates the point of my original Volokh post perfectly. If one accepts your implicit premises, your conclusions follow. But that’s the point. A majority of the Court rejects those premises.

Ben Alpers @14 –
To your specific question my answer is no, but largely because I don’t believe challenges to spending are justiciable. But if, as I suspect, you’re asking about judicial enforcement of the limits implicit in the enumeration of powers in Article I, Section 8, I believe the Court can and should engage in such enforcement. If anything, I believe the Court has been too timid in this regard. So, for example, I believe it is proper for the Court to determine whether a given enactment does, in fact, “regulate Commerce among the several states,” and should not merely take Congress’ word for it. By the same token, the Court has an obligation to determine whether a given exercise of the 15th Amendment’s enforcement power is “appropriate,” and while such review should give Congress some degree of leeway, I do not believe it authorizes a blank check.

17

Anderson 07.09.13 at 6:59 pm

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.”

18

Mark Field 07.09.13 at 7:10 pm

I assume you mean my second point, since Roberts’ failure to specify a clause inconsistent with the VRA is obvious and has been the source of criticism from conservative scholars (Posner, McConnell).

In the absence of any conflict with another Constitutional provision, then there are multiple problems. First, McCulloch’s language has always been seen as rejecting the sort of review you mention in response to Ben. If the Court is going to limit McCulloch in some way, then it should be more forthright about this. Second, limiting McCulloch would cause significant problems for any originalist. Everyone has understood what Marshall meant ever since he issued the opinion in 1819. The drafters of the post-Civil War amendments understood him that way. For the Court now to impose limits on Marshall’s language as you suggest would contradict the understanding under which those amendments were ratified. The whole point was to give the power to Congress because they couldn’t trust the Court. Third, intervention by the Court on the scale you appear to suggest would raise a host of issues about the nature of republican government.

19

Anderson 07.09.13 at 7:15 pm

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 ….

20

Barry 07.09.13 at 7:32 pm

Kevin Drum summed it up best. From http://www.motherjones.com/kevin-drum/2013/06/compare-and-contrast-laws-protect-white-voting-vs-laws-protect-black-voting

On the Crawford case, where the law was designed to restrict voting:

“If a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.””

In the Shelby case, where the law was designed to support voting:

“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. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress.”

Kevin’s comments: “Note the difference. In Crawford, where the target is a law that’s likely to disenfranchise black voters, the bar for constitutionality is almost absurdly low. Regardless of what the real motives of the lawmakers are, or what the likely effect of the law is, it’s valid if the state merely asserts a “neutral justification.” That’s it.

But in Shelby County, where the target is a law designed to protect black voters, the bar for constitutionality is suddenly much higher. Even though the Fifteenth Amendment gives Congress the unconditional right to enact legislation designed to prevent states from abridging the right to vote “on account of race [or] color,” the court ruled that, in fact, Congress is quite fettered after all. It cannot decide to simply renew a law that it thinks is working well. Instead, it’s required by the court to update its formulas to satisfy the court’s notions of what’s logical and what isn’t.

So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.”

It’s call ‘compare and contrast’.

21

Trader Joe 07.09.13 at 7:38 pm

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).

22

Barry 07.09.13 at 7:43 pm

Thanks, Trader – that’s an excellent point, and it does give Roberts the lie, so to speak.

23

rea 07.09.13 at 8:26 pm

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.

24

Anderson 07.09.13 at 8:30 pm

Let Shelby County, Alabama demonstrate that it has no recent history of discrimination, and off the list it goes.

It’s almost as if they anticipated some problems with that.

As Wikipedia tells us, bail-out is not an imaginary remedy:

On September 22, 2010, the first two jurisdictions outside the state of Virginia—Kings Mountain, North Carolina, and Sandy Springs, Georgia—successfully “bailed out” from Section 5 Preclearance requirements.[36] On November 15, 2012, New Hampshire sued to “bail out” from the requirements, which were originally imposed on ten towns that used a literacy test and had voting disparities when the Act was passed,[37] and prevailed on March 1, 2013.

25

Pub Editor 07.09.13 at 8:43 pm

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”?

26

Barry 07.09.13 at 8:56 pm

“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”?”

To me, the word ‘appropriate’ would then be rather relevant.

27

Anderson 07.09.13 at 9:05 pm

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.

28

Rich Puchalsky 07.09.13 at 9:09 pm

Why not? What one Congress can do, another Congress can undo. Coverage is only indefinite if another Congress never votes to undo it.

29

Anderson 07.09.13 at 9:09 pm

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

30

Mark Field 07.09.13 at 9:17 pm

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)?

Under McCulloch, the same standard applies to all grants of power under Art. I. We might as well ask whether the Court could rule that it wasn’t “appropriate” for Congress to issue the AUMF on Iraq. I mean, sure that’s arguable, and I’d even agree with it, but it isn’t the way we enforce limits on the Congressional power to declare war. Those limits are political, just as they should be with racial discrimination in voting rights. As Madison expressed it in his speech introducing the Bill of Rights, “Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper…” My emphasis. He pointed out that the Bill of Rights was precisely to limit the application of the N&P clause. There are limitations on Congressional power vis-a-vis the states, but none apply to the VRA.

I’ll add that Para. 2 of the 15th A is a grant of power. It doesn’t make much sense for the Court to interpret it as a limit on power (Marshall made the same argument re the N&P clause in McCulloch). The limits are stated elsewhere in the Constitution (e.g., Art. I, Sec. 9 or the BoR), not in the grants.

31

rea 07.09.13 at 9:31 pm

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.

32

Jeff R. 07.09.13 at 9:43 pm

@25-27: That formulation also moves within striking distance of working corruption of blood, which would also be a constitutional no-no. (For that matter, an opinion based on a tightly stretched reading of that clause would probably have been more convincing than the one we got.)

33

Pub Editor 07.09.13 at 9:46 pm

OK. Rational basis. Got it.

34

Pub Editor 07.09.13 at 9:53 pm

Mark Field @ 30: “I’ll add that Para. 2 of the 15th A is a grant of power. It doesn’t make much sense for the Court to interpret it as a limit on power…”

But those grants of power, both in the 15th A (“appropriate”) and elsewhere in the Constitution often contain limiting language (e.g., Congress can pass a budget for the Army, but that budget cannot be for more than 3 years; or, in Art. I, section 8, clause 1, “but all Duties, Imposts and Excises shall be uniform throughout the United States”).

35

Pub Editor 07.09.13 at 9:56 pm

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.)

36

Mark Field 07.09.13 at 10:50 pm

But those grants of power, both in the 15th A (“appropriate”) and elsewhere in the Constitution often contain limiting language (e.g., Congress can pass a budget for the Army, but that budget cannot be for more than 3 years; or, in Art. I, section 8, clause 1, “but all Duties, Imposts and Excises shall be uniform throughout the United States”).

Which is evidence that no such limitation was intended in this case. A power granted with no limitation is a power granted.

There are limitations here, just as there are with the N&P clause. They just need to be stated in the Constitution, as in the examples you gave or in the BoR.

37

Rakesh Bhandari 07.10.13 at 12:28 am

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.

38

js. 07.10.13 at 1:48 am

Not having read through this exchange…

Yeah, well, you want want to, umm, “read through the exchange”.

Speaking of which, many cheers to Anderson’s comments above, as also Mark Field’s. Totally reaffirming my point on the birthday thread re how much I have learn from this site — from the posters _and_ from the commenters.

39

Rakesh Bhandari 07.10.13 at 1:52 am

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.

40

John Holbo 07.10.13 at 4:32 am

“Is it not important enough for CT to have a resident expert? I just don’t get it.”

You think the problem with the post is that I’m not a lawyer? Or not a law professor?

I’m making an argument. If it’s good, it’s good. If it’s not, it’s not. What’s not to get?

“Not having read through this exchange …”

If you haven’t read our exchange, as you say, how do you know that we haven’t read some other exchange, to such an extent that what we’ve said in our exchange – the one you haven’t read – is wrong?

For what it’s worth, the bit you quote (but you don’t provide a cite) seems supportive of my criticisms of “Shelby”. It seems to say the coverage formula is still reasonable and relevant. If so, the court decided wrongly, since reasonable and relevant clears any appropriate rational basis bar. It’s nice if someone prominent agrees with me – and three someones is even better! – but it doesn’t seem utterly vital that I should know about every prominent person who happens to agree with me. The arguments can be assessed on the merits.

41

John Holbo 07.10.13 at 4:55 am

I’m glad Jonathan Adler showed up in comments. I wasn’t won over by any of those links. I had seen that stuff and it seems to me weak. The strongest argument is that VRA is bad policy. But legally, that’s a terrible angle. The NAMUDNO stuff is thin and almost circular. It just looks like a note Roberts wrote himself, which he is now citing as independent evidence that, now, he is right.

Adler writes:

“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.”

This seems to me uncompelling. There is some degree of fit, even if you happen to think it’s bad policy at this point. The only way to rule it out is to say that, even though there IS some degree of fit, at this point it isn’t a good fit. But this sets the review bar congress must clear very high. The law must be a GOOD law. And if all it takes set that bar so high is some armchair sociology and a moral intuition about fairness, then we are really departing from legal patterns of reasoning.

One point I haven’t made before, but it speaks to the congruence and proportionality point: even if you think these racial problems are real, but not such a big deal as they used to be in 1964, it doesn’t follow that continuing to address them is disproportionate. Because, actually, pre-clearance, though it’s a burden, is not such a burden. You propose a change. If it’s ok, it’ll get cleared. Annoying, yeah, but how great a harm, to have to wait like that? If these states aren’t trying to do anything that should be stopped, then the worst they are suffering is a minor, enduring affront to sovereign dignity. A purely symbolic harm. (Not nothing, but not the end of the world.) If they are trying to do things that should be stopped, what with Amendment 14 and all, then that’s an excellent argument for legislation not letting them do those things.

42

s johnson 07.10.13 at 12:55 pm

Have you forgotten that legalisms are justifications for expediency? Shelby County expedites the removal of federal protections for voting rights for certain populations.

If this seems discriminatory, remember that the night watchman necessarily discriminates as best as possible amongst the threats to his master’s property. Why should libertarians and other conservatives reject Shelby County?

43

Anderson 07.10.13 at 1:11 pm

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.)

44

SamChevre 07.10.13 at 1:16 pm

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.

One problem with this line of reasoning is that only the elected government can apply for a bail-out. In the city I live in, the elected government is very unrepresentative of the voters (the voting districts have wildly different numbers of voters.) The current elected leadership likes the pre-clearance system–it keeps anyone from districting them out of their seats.

45

SamChevre 07.10.13 at 1:19 pm

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.)

46

Anderson 07.10.13 at 1:37 pm

45: not so much. The states’ police powers are subject to essentially the same rational-basis test as applies to the feds under the 15th Amendment; in effect, the 15th Amendment gives Congress “police power” to enforce it.

47

politicalfootball 07.10.13 at 2:51 pm

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.

48

Jerry Vinokurov 07.10.13 at 3:17 pm

More succinctly, the premise that

This is because the 15th Amendment only authorizes Congress to “enforce” its protections through “appropriate legislation.”

does not entail the conclusion that

Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required.

No special legal expertise is required to understand this; this is simply a falsehood and anyone asserting it is either stupid, lying, or both. To assert this chain of logic is to admit that words have no meaning and may be redefined at will. Which, come to think of it, is entirely in line with right-wing politics in general.

49

politicalfootball 07.10.13 at 3:25 pm

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.

50

Rich Puchalsky 07.10.13 at 3:49 pm

“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. “

Adler’s post is racist in effect. He’s coming up with a justification for disempowering black people. The only people he’s doing a service for are white racists.

51

Anderson 07.10.13 at 4:06 pm

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.

52

js. 07.10.13 at 4:07 pm

politicalfootball @47:

I had exactly this thought when I first read the post. My second thought was, well, I won’t interfere in the polite conversation, but nevertheless, this does seem to me the heart of the matter.

53

LizardBreath 07.10.13 at 4:15 pm

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.

54

rea 07.10.13 at 4:16 pm

Jerry Vinokurov points to this statement by Jonathan Adler:

“Therefore, Congress has to be careful about imposing limitations on states that are not constitutionally required.”

Well, but that misses the point. Shelby has nothing whatever to do with Congress imposing any limitations on state regulation of voting. After Shelby, those limitations remain exactly the same as before. What the stricken provisions of the Voting Rights Act dealt with were not substantive limitations on the power of states to regulate voting, but rather a procedure for determining whether such provisions passed constitutional muster.

55

Bruce Wilder 07.10.13 at 4:28 pm

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.

56

MPAVictoria 07.10.13 at 4:36 pm

“This decision came out the way it did because “from the Right’s perspective” it would be better if black people didn’t vote.”

And we are done here. Politicalfootball’s statement is so manifestly true that I wonder how someone like Alder can look himself in the mirror after failing to state it up front.

57

politicalfootball 07.10.13 at 4:47 pm

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?

58

Barry 07.10.13 at 5:11 pm

politicalfootball 07.10.13 at 4:47 pm
” 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. “

Remember the whole Eichmann deal? He wasn’t antisemitic; he was just leveraging his core talents in the fastest-growing fast track field of the day.

59

Pub Editor 07.10.13 at 5:15 pm

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.

60

Mark Field 07.10.13 at 6:28 pm

Thank you and js too.

61

Rich Puchalsky 07.10.13 at 10:37 pm

“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.

62

Rich Puchalsky 07.10.13 at 10:39 pm

Oops, last paragraph above was a quote of politicalfootball at #57. After which I had meant to add that he’s careful to hold himself multiple steps away from overt racism, but I don’t see why anyone else should care.

63

Anderson 07.10.13 at 10:56 pm

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.*

64

John Holbo 07.11.13 at 1:19 am

I agree with Anderson.

65

bob mcmanus 07.11.13 at 1:46 am

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?

66

John Holbo 07.11.13 at 3:33 am

“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?”

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?

67

mds 07.11.13 at 3:36 am

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

68

Anderson 07.11.13 at 3:49 am

mds, you’ve got an Onion op-ed there. Or a WSJ op-ed. In fact, you could send that to both of ’em.

69

Rich Puchalsky 07.11.13 at 4:49 am

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.

70

Corey Robin 07.11.13 at 5:01 am

“I’m too dismissive to use three words instead of one.”

And yet you use so many. 486, to be exact, on this post alone.

71

Rich Puchalsky 07.11.13 at 5:09 am

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

72

politicalfootball 07.11.13 at 3:29 pm

bob’s 65 has generated some responses that are confusing to me, but I’d like to try to unravel them. I apologize in advance for any misinterpretations.

bob’s point, as I reckon it, was that my 57 was too focused on race, and I’ll accept that, though bob takes that point too far. Racism and classism are fellow-travellers, and when they conflict, wealth isn’t always the first consideration. Obama, Kanye West, and Dwight Howard (to use bob’s examples) aren’t likely to favor vote suppression, and the Shelby supporters really would like to keep those three from participation in the political process.

John’s response to bob in 66 confuses me:

Why would anyone insist it is entirely racism?

bob’s point was more-or-less the opposite of this, which makes me suspect that John really means, “Why would anyone insist it’s entirely race and class?”

If I’ve got that right, my response is: Because after an extensive search, nobody has offered a plausible alternative.

I mean, sure, as a veteran taker of multiple choice tests, I am appropriately suspicious of absolutist answers. Maybe race (and class) aren’t all there is to Shelby, but those factors seem to be both necessary and sufficient to explain how Shelby happened.

73

politicalfootball 07.11.13 at 3:34 pm

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

74

Tom Bach 07.11.13 at 5:05 pm

I’ve been reading Freeberg’s book on Deb’s, dissent, and democracy; he claims that Holmes and Brandeis reconsidered their position(s) on the limits of free speech as a result of the criticism they faced after the Deb’s decision. 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.

On the other hand, politicalfootball’s point about the utility of the desire enable voter suppression explaining the why is no less necessary for understanding what the Roberts court is up.

These two critical thread aren’t, it seems to me, antagonistic but rather each is necessary to understand how badly the other side argues for the ends it aims to achieve, which seems to me to be the 19th century with fewer trains.

75

Rich Puchalsky 07.11.13 at 5:24 pm

“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.

76

Anderson 07.11.13 at 5:41 pm

” So if one thinks that Roberts is open to having his mind changed on the merits”

Not even slightly. Kennedy, just barely possibly, but he’s been off the reservation lately.

But future justices are an important audience too, and if the Court were going to overrule Shelby Cty, it would help if it were a byword for neo-Confederate gibberish.

(Now back to my day job of making the worse appear the better cause.)

77

politicalfootball 07.11.13 at 5:52 pm

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.

78

politicalfootball 07.11.13 at 6:34 pm

Rich, your metacommentary often reminds me of Don Marquis’ tale of a spider and a fly (as told in free verse by the cockroach archy):

but the end would have been
just the same if neither of
us had spoken at all

boss i am afraid that what
the spider said is true
and it gives me to think
furiously upon the futility
of literature

I don’t take as bleak a view as you and archy do.

79

politicalfootball 07.11.13 at 8:03 pm

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.

80

Rich Puchalsky 07.11.13 at 11:12 pm

I like Don Marquis too.

As for Roberts, was he convinced on the merits? I wrote about this at the time. If he ever explained coherently to anyone why he voted as he did, I missed it, and his opinion certainly didn’t say why — it notoriously suffered from cut-and-paste failure from being changed at the last minute. So people made up all sorts of reasons why it was his whim to decide it that way for all of us. Some people like to make up the reason that he did the right thing on the merits. I think that this says more about the people making up the reason than it does about Roberts. Other people (Ian Welsh, for instance) think that he decided that way as a giveaway to the insurance companies. I, romantic that I am, prefer to think someone bribed him by hiring him a really good prostitute and giving him some coke, which is as provable or disprovable as any of the other reasons. But if you’re going to make up a reason, I think that’s at least as good a one as that he saw the light of merit this one time.

81

Rich Puchalsky 07.11.13 at 11:14 pm

“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.

82

politicalfootball 07.11.13 at 11:50 pm

As for Roberts, was he convinced on the merits?

“On the merits” as you and Tom seem to be using the phrase is, I think, unduly restrictive for our purposes. In Shelby and with Obamacare, I suspect his thinking wasn’t much related to what you and Tom would call the merits of the case, so in that sense, the “merit” issue was always a dead letter. There’s no opportunity for him to change his opinion based on the merits when he never had such an opinion in the first place.

On the other hand, he did have an opinion on the merits of voting one way or the other, and with Obamacare, that opinion changed. Now maybe it was hookers and blow, but (and here’s where I throw in with Tom) I think there’s reason to believe that Roberts was swayed by the political and legal shitstorm that would be raised by overturning a huge piece of legislation using ludicrous legal reasoning.

Given that I hold this opinion, I agree with Tom that there’s a certain potential value in closely examining the legal rationale for Shelby. If I shared your view, I’d be soliciting donations for a hookers-and-blow fund instead.

83

Rich Puchalsky 07.12.13 at 1:31 am

“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.

84

politicalfootball 07.12.13 at 2:36 am

So why should we care about the legal justification when he doesn’t?

What I’m trying to say is that he doesn’t care about the legal justification as legal justification. The Justices, though, seem to be somewhat nervous about the appearance of flouting the law, and one important way that appearance is created is by the actuality of it. We are examining that actuality here.

I don’t want to oversell this – it’s certainly not the primary reason I’m interested in chewing over this matter. LizardBreath’s 53 captures my primary interest in this quite succinctly.

But it has the important cost that by treating Adler’s description as a reasonable one to be argued against

This brings us back to my 47, where I raise a related point. But that comment was merely a reminder about the limitations of this sort of discussion. It wasn’t a suggestion that I thought the thread was inherently worthless or counterproductive. Given my non-legal background, it was possible to me that Roberts had a legitimate legal rationale for the decision. Turns out he didn’t, but I didn’t know that until I saw it examined in forums like this. Again, 51, 53 and 63 capture this.

So I don’t expect anyone to understand.

I believe I understand your point entirely. I just disagree. And I am neither a lawyer nor an academic, nor do I have any other strong incentive to suppose that Adler’s argument is reasonable – a fact most compellingly demonstrated by the fact that I don’t actually believe that.

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John Holbo 07.13.13 at 5:22 pm

“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.”

Rich, why are you contributing to the problem of public reason being the problem, then, by trying to reason to us, publicly, about how public reason is the problem here? By contributing to this thread you can only drive up the comment count, marginally bolstering the impression that there is something worth arguing about reasonably here – to wit, the subject of the thread, Adler’s argument; which, by extension, can only help Adler, by your lights? So why are you doing something you yourself believe must be counterproductive? We liberals at least have the excuse that we’re naive idiots, by your lights. What’s your excuse for acting like a naive idiot, given that you say you know better?

I know, I know, I’ve asked you this question before. But you didn’t give me much of an answer then, so I’m asking again. You are insignificant, therefore bear no responsibility for shaping public discourse; whereas I, CT blogger, bear responsibility. That was your answer. But it’s weak, for reasons I think you are smart enough to see, if even a liberal like me can see the tensions. So what gives?

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Corey Robin 07.13.13 at 5:54 pm

But even if we accept Rich’s answer — that he is insignificant, while John is not — there’s a problem. While Rich may not attract attention to this post and the ensuing thread, his answer does elicit a response from John, who, by Rich’s own lights, is important and does attract attention. (I know for myself whenever I see John’s commented on something I tend to take a look at the post and the thread; I suspect I’m not alone.) So even in his magnificent insignificance, Rich manages to shape public discourse. And is therefore, by his own lights, responsible.

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Anderson 07.14.13 at 1:13 am

“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.

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Rich Puchalsky 07.14.13 at 3:28 am

Arguments can never be about matters of degree, only of kind? You can congratulate CT on ten years of being one of the most-read left political blogs, but that suddenly doesn’t matter when it comes to a question of how many people are reading what? That’s the same logic that global warming denialists bring out when they say “Ah hah, you drove your car to the protest, so you’re really doing the same thing as the people running this coal plant.” By your logic, I should stop going to protests of this kind, because I’m responsible just as much as anyone unless I live in a cave.

But OK. Then I’ll point out that I didn’t analyze Adler’s logic or legal theory. I just called his article racist in effect. If you’d written that Alder’s article was racist in effect, I wouldn’t have minded, in part because that would have been boring and no one would have cared. But, of course, that’s different than dignifying it with a real analysis and treating his “Wolverines!” thesis as if it’s an important legal argument.

The left blogosphere has been trying to deal with this question of how to answer the right all the way back to the early days. I’m not calling for mockery; mockery doesn’t work either, and anyways once people get used to it as the default response they end up mocking people with no real power at all. But when Anderson says that you’re either arguing with your opponents or shooting them, he’s wrong. You can in fact shift the Overton window and just ignore them. No one here goes to the really rancid right-wing sites and critiques them, they only go to the respectable ones, and by doing so, they help to define what respectability is.

And this isn’t a matter of not critiquing arguments worth critiquing. No one is supposed to give up the life of the mind. But can you really say that this is one? Or was this just the only one available?

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js. 07.14.13 at 3:41 am

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.)

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js. 07.14.13 at 4:16 am

Yikes, that first paragraph is a mess! Second sentence should read: “Which, as you seem to acknowledge, someone like Roberts is after all sensitive to.” And the first “because” in the first sentence really has no place there.

Anyway, I was curious about this:

You can in fact shift the Overton window and just ignore them.

I actually don’t know how to read this. Surely the suggestion is not that you can shift the Window by ignoring them—that seems totally backwards. I can’t see at all how ignoring the argument would itself help shift the Window. So, is the idea something like: energies are better spent in other pursuits that help shift, etc., and then you’re neither shooting at nor arguing with your opponent? Which, to some extent, fair enough, except I’m still not convinced that pointing out the utter baselessness, etc., doesn’t itself help shift the Overton window. (Which of course is not to say that argument of the sort in question is the only avenue for shifting relevant windows.)

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Rich Puchalsky 07.14.13 at 4:33 am

“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.

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John Holbo 07.14.13 at 9:44 am

But Rich, if we don’t call conservatives out when their arguments are bad, lest that make them respectable, don’t we risk making them respectable on, ‘no one said they were wrong so there must be something to it?’ grounds? Surely we are damned if we do, damned if we don’t if you are right.

As to the point about who is prominent and not, I didn’t mean to deny there is some sense in which I am more prominent than you. I was merely indicating how resting the argument on this distinction leads to obvious sorts of self-defeating nonsense (unless you know better!) It was the latter I objected to, not the premise, per se.

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Rich Puchalsky 07.14.13 at 3:12 pm

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.

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peter ramus 07.14.13 at 4:00 pm

Can abb1 be next?

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Andrew F. 07.14.13 at 10:11 pm

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.

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John Holbo 07.14.13 at 10:24 pm

“There may be no easy answers to any particular case, but the general principle isn’t that complicated.”

The general principle being?

Don’t be intellectually counterproductive? Don’t shift the Overton Window the wrong way? Yes, sure. I’ll buy that. I obviously always have. But then: what are we arguing about? In general?

If you grant (as it turns out you do) that it may be useful to argue against Adler on Shelby and I grant (how not?) that it might turn out to have been on balance a waste of time, then what are we arguing about, specifically?

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

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Rich Puchalsky 07.14.13 at 10:55 pm

“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.

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Rich Puchalsky 07.14.13 at 10:57 pm

Oops. Last sentence should have been “it’s *not* some objection […]”

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js. 07.14.13 at 11:40 pm

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.

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John Holbo 07.15.13 at 12:38 am

“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.”

Ok, I get THAT you think I shifted the Overton Window the wrong way. I don’t get WHY you think that. You seem to be suggesting that, before my post, the world had consigned Shelby to the ashheap as being an extremely weak and sophistical specimen of pseudo-legal reasoning. But then, by arguing that this thing everyone was assuming was correct was indeed correct, I caused them all to believe the opposite. (Or, more weakly, I risked this dangerous result.) I don’t see why you believe any of this. Either that Shelby was instantly known by all to be nonsense. Or that providing a rational argument for this thing everyone already believed would naturally have the effect of causing them to stop believing it.

Also, I don’t see the point of arguing that ‘shifting the Overton Window the wrong way is harmful’. Surely you don’t think that I think that shifting the Overton Window the wrong way is not harmful. We can only disagree about whether I’ve done that. So confine yourself to that question, and explain why you think I’ve shifted the Overton Window the wrong way. (We’ve come this far. It’s not too late to take that first step!) And refrain from unhelpful cookie jar metaphors that surely are either no argument, or else an argument against what you are saying, rather than for it. (Why would me telling people that the cookie jar seems empty, except for this one stale cookie, cause them to believe the cookie jar was maybe full of fresh cookies, after all?)

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Rich Puchalsky 07.15.13 at 12:51 am

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.

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Rich Puchalsky 07.15.13 at 1:02 am

“So confine yourself to that question, and explain why you think I’ve shifted the Overton Window the wrong way. “

Well, I thought I had. At tremendous length, and now I’m worried about Corey breaking out the word counter again. I don’t think that you really did understand what I’m writing, if my argument didn’t get through.

But all right. You shifted the Overton Window the wrong way because any publicity is good publicity. Someone like Adler does better if there are arguments showing him to be wrong than if there’s total silence about him. An argument showing him to be wrong shows an even more basic thing: that he’s someone worth arguing with. And the people who would find his argument at all convincing on its own will simply not follow your argument, or think that he won the argument somehow, no matter how good your argument is. If there are regular debates about Shelby, it wouldn’t matter one bit if the left / center won 100% of those debates. All that would do would be to establish that there were regular debates about Shelby.

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Kevin McDonough 07.15.13 at 1:41 am

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.

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LFC 07.15.13 at 1:48 am

Andrew F. @95

The principle [of equal sovereignty of the states] is plausibly embedded in their [i.e. the majority’s] 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.

My impression from following this quite casually, I admit, is that the so-called equal sovereignty principle is something the majority has pretty much ginned up, if not outright invented; when someone like R. Posner says there is no such constitutional principle, I tend to think he knows what he’s talking about. That the alleged principle “is plausibly embedded in [the majority’s] view of American federalism” doesn’t matter, since it simply moves the issue a step back to the question whether the majority’s view of American federalism is valid. If it isn’t valid, then the fact that the alleged or putative equal sovereignty principle is “plausibly embedded” in an incorrect view of federalism doesn’t help the ‘principle’.

And to the extent that some kind of equal sovereignty principle can be extracted from or found in U.S. history (as opposed to the Constitution itself), then in this particular case historical considerations would seem to weigh more heavily in the opposite direction, for fairly obvious reasons which have already been discussed.

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Rich Puchalsky 07.15.13 at 1:51 am

“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.

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LFC 07.15.13 at 2:05 am

P.s. I know I can’t shift an Overton window, being someone of absolutely no prominence whatsoever, so I am exempt from Rich’s strictures w/r/t anything I write about anything, even if one thinks Holbo isn’t. (Though personally I rather doubt whether all the posts Holbo has written about what someone said on National Review Online, or The Corner or whatever the hell it’s called, have raised the legitimacy or visibility of The Corner one iota beyond what it already is. Ditto for his arguments with libertarians. Holbo likes to argue with libertarians and National Review types, but rarely if ever have his posts led me to so much as click on, let alone read, the pieces he argues with. That could be because I’m not very interested in libertarianism, Hayek, and all that stuff. Everyone is entitled to his/her interests, of course, unless perhaps they are *actively harmful*, and I remain rather unpersuaded that Holbo’s interests, though I don’t for the most part share them, are actively harmful.)

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PatrickinIowa 07.15.13 at 2:30 am

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

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

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John Holbo 07.15.13 at 3:16 am

“Someone like Adler does better if there are arguments showing him to be wrong than if there’s total silence about him.”

I just don’t share your faith on this point, Rich.

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Rich Puchalsky 07.15.13 at 4:59 am

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.

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Collin Street 07.15.13 at 6:23 am

Something that struck me.

Legal opinions are supposed to be self-contained. They don’t need explication, or analysis: if there’s anything that’s not clear or even subject to doubt after you’ve read the opinion, then — presuming you’re fit to be reading legal opinions usefully — the opinion itself is ipso-facto flawed. If it doesn’t make its conclusions indisputable then it doesn’t have any basis for making those conclusions.

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

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John Holbo 07.15.13 at 12:46 pm

Rich, If everyone is just confirmed in their own opinion, as you say, then your hypothesis is disconfirmed, right? Because what should have happened, by your lights, is that those who thought Shelby was disreputable should have been converted to the view that it is respectable by my argument that it was disreputable. Do you see any evidence of that dynamic in this thread? If so, where do you see it? If not, why are you so sure it must go this way, if there is no evidence of it actually going this way? Can you point to a single response to my post that follows the pattern you say responses must follow? Who have I converted from Shelby skepticism to credulous Adlerism, that you know of?

Also, upthread some people say they learned from the post and comments, even if they did not radically convert to a new opinion. How does your view account for this?

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JanieM 07.15.13 at 1:35 pm

If it doesn’t make its conclusions indisputable then it doesn’t have any basis for making those conclusions.

If this were true, why would there be such a thing as a dissenting opinion or a non-unanimous decision?

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JanieM 07.15.13 at 1:36 pm

P.S. Law isn’t math.

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Rich Puchalsky 07.15.13 at 1:53 pm

“Because what should have happened, by your lights, is that those who thought Shelby was disreputable should have been converted to the view that it is respectable by my argument that it was disreputable.”

No, that’s not how it works. Look at the example in #91, please. If you have a group of anti-Shelby commenters, none of them go away from a debate on Shelby thinking that they now approve of the decision in Shelby. No one who already had a fixed opinion changes that opinion. But the topic itself becomes one in which both sides become part of the mainstream of social thought. Even the anti-torture people (going back to the example in #91) become desensitized to having to debate those who favor torture, and they start to congratulate their opponents on providing the social service of representing an argument that an important part of the public holds to etc. Everyone collegially thanks each other and then the pro-torture people go back their jobs and waterboard someone (or, in this case, figure out how to keep some people from voting) and the people who didn’t start with an opinion shrug and say that liberals and conservatives are always arguing over something.

“Also, upthread some people say they learned from the post and comments, even if they did not radically convert to a new opinion. How does your view account for this?”

I think that they were happy to confirm their previous opinion, and since no one can say “Wow, thanks for confirming my preconceptions!” it’s common to say “Wow, I really learned a lot!” But we can add to the survey. js or Pub Editor, what did you actually learn from the post? Anderson or Mark Field, did you really learn how to defeat new arguments?

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Anderson 07.15.13 at 2:34 pm

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.)

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Mark Field 07.15.13 at 2:39 pm

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

Not generically, no, but I assume you mean something more specific than that. And the answer to that more specific question is yes. It’s like debate practice — by forcing myself to confront Prof. Adler’s arguments and prepare responses, I’m better prepared to deal with them (and similar ones) the next time. The more I think about a topic, the more I clarify my own thoughts and the more I improve the way I express them. That enables me to see the weaknesses in new arguments because I have a context or model from which to analyze the subject.

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Anderson 07.15.13 at 2:39 pm

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.

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Anderson 07.15.13 at 2:40 pm

Well damn, Mark, if you were going to make my point much more concisely and clearly than I did, you might have warned me .. oh well, you always do that, what am I griping about?

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John Holbo 07.15.13 at 2:41 pm

“No one who already had a fixed opinion changes that opinion.”

But this is an argument against arguing, not merely an argument against arguing with the likes of Adler. It’s obviously true, if course, that people tend to confabulate and engage in defensive motivated reasoning rather than admit the other side has scored a point. But that’s a separate issue, surely. Since it’s equally a problem for everyone, not just me.

I’m still inclined to shift the debate onto a more empirical footing than I think you will be comfortable with, Rich, but let me try one last time to draw you onto that plane. Can you provide evidence that before I made my post there was a very substantial, society-wide or at least blogosphere-wide consensus that the Shelby decision was beyond the pale of reasonable discourse – much like torture before Bush and Yoo. And, due to my post arguing that Shelby was a bad decision, there is some reason to think society, or the blogosphere, is tipping back towards thinking there might be something to the Shelby decision, after all? That is, I’ve shifted the Overton Window in the wrong direction? For example – this is the second time I’ve asked this, but it seems rather important – is there anyone in particular who looks to you to have been inadvertently converted from sensible Shelby skepticial to unhealthy Adler credulity by my arguments against Shelby?

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js. 07.15.13 at 2:56 pm

Umm, I learnt about some of the history and context that I didn’t know very much about, beforehand. So, e.g., Katzenbach was not something I’d ever heard of before. If you, Rich, were already more knowledgeable, I can imagine you got less out of the thread. (Or maybe, you think the history/context is irrelevant, which just strikes me as a rather odd position.)

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politicalfootball 07.15.13 at 3:09 pm

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.

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politicalfootball 07.15.13 at 3:13 pm

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.

I do agree with Rich that as citizens, as part of the body politic, we should make an effort to conform our behavior to that which is best for society, even if by ourselves we can’t change things. For instance, as silly and futile as it is, I do vote.

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politicalfootball 07.15.13 at 3:26 pm

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.

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Rich Puchalsky 07.15.13 at 3:29 pm

I had a reply above, but it had two links in it, and as a result I think it’s stuck in moderation. But anyways, thanks for the responses, and I should concede the obvious that a) debate practice does make you better at debates, b) going back and doing research, as Anderson did, does actually help you learn new things, c) arguments help to clarify one’s thought.

So the people involved in the debates get better at them. But no one can actually win the debates. As John Holbo says above, this is really an argument against arguing, but there are particular characteristics of political arguments of this kind that mean that tribal effects are much more important than anything involving rationality. More importantly, I think that our era is one where debates about e.g. global warming or austerity can be settled for any version of “settled” that you’d generally accept, yet have a social function that’s quite different than you’d expect.

“is there anyone in particular who looks to you to have been inadvertently converted from sensible Shelby skepticial to unhealthy Adler credulity by my arguments against Shelby?”

I write that any publicity is good publicity, and you answer by asking me to prove something else? Politicalfootball is at least addressing what I argued… I’ll have to get back to you on this one, and see what develops. I suspect, but do not have time to look up now, that the back links from here to Volokh are already developing “see, the liberals are engaging our arguments” affirmation.

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politicalfootball 07.15.13 at 3:41 pm

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.

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Rich Puchalsky 07.15.13 at 4:06 pm

A quick note to address politicalfootball:

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

I disagree. Bush v. Gore has never been legitimated other than in the “the Supreme Court decided it, so we have to live with it” sense. 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. All of the initial response to the Shelby decision was that this was one of them. John asks for proof that there was “at least blogosphere-wide consensus that the Shelby decision was beyond the pale of reasonable discourse – much like torture before Bush and Yoo” and I’d say that his failure to find an outright defense on Volokh constitutes part of that proof.

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bob mcmanus 07.15.13 at 4:34 pm

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.

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vasvas 07.15.13 at 4:39 pm

“Can you provide evidence that before I made my post there was a very substantial, society-wide or at least blogosphere-wide consensus that the Shelby decision was beyond the pale of reasonable discourse – much like torture before Bush and Yoo. And, due to my post arguing that Shelby was a bad decision, there is some reason to think society, or the blogosphere, is tipping back towards thinking there might be something to the Shelby decision, after all?”

I guess it’s not entirely a good idea to put oneself in the middle of an argument like this, but I think Rich isn’t claiming what you’re suggesting (so he doesn’t have to bring evidence of what you’re suggesting). He’s claiming that you’re influencing the wrong way the vast sea of undecideds. The argument goes, the vast sea of undecideds won’t be persuaded by argument, because they don’t have the patience, or inclination, or whatever, for it. They will just go with the flow, where the flow is determined partly and importantly by social connections. Discussing KKK’s opinions on PBS makes one more reluctant to think of his KKK colleague as an ape whose opinions are worth jack, and may make KKK’s opinions respectable, not because they won the war of ideas but because they’re hitting at base instincts, benefit from herd mentality, etc. If opinions are respectable, I may as well go with KKK, where my colleague is a member, where the beer is cold, and where my prejudices are validated. If only apes belong to the KKK, I guess I’ll just become a Republican.

So, in that vein, it’s critical, wherever possible, to ensure some ideas are beyond the pale. Now, admittedly, that’s mightly difficult for a Supreme Court opinion andm more importantly, decision. But, goes the argument, it’s not that hard for Prof. Adler’s piece. It’s certainly not helpful for people to claim that the piece provides a service to anyone except racists and power hungry Republicans.

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politicalfootball 07.15.13 at 4:53 pm

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).

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politicalfootball 07.15.13 at 4:57 pm

Hah! My comment was written before bob’s but he and I have the same analysis – the only difference being that bob is pro-authoritarian.

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Rich Puchalsky 07.15.13 at 5:09 pm

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.

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Rich Puchalsky 07.15.13 at 5:17 pm

vasvas: “So, in that vein, it’s critical, wherever possible, to ensure some ideas are beyond the pale.”

Yes, exactly. If people want to say that it’s impossible in this case because you’re going up against the Supreme Court, then I’m just wrong about this case. But I don’t think that the general principle is an authoritarian one. Social interactions are how we demonstrate social values, and arguing is a social interaction before it’s anything else.

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Pub Editor 07.15.13 at 5:22 pm

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.

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Rich Puchalsky 07.15.13 at 5:37 pm

“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.”

No one. I’d wait until there’s a whole-hearted defender with a well-thought-out actual defense that holds together — not Adler’s “Wolverines” theory, which is predicated on “The Left generally sees a vast sea federal power limited by islands of protections for various rights” and casts the question as one of resisting this left authoritarianism, in the same way that the right has always cast Federal attempts to enforce minority voting rights as overweening attacks on state’s rights.

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bob mcmanus 07.15.13 at 7:25 pm

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.

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John Holbo 07.15.13 at 8:36 pm

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.

Strong: for all P, such that P is a proposition, any attempt to prove P false will only produce stronger belief in P, overall.

Weak: for some P, some attempts to prove P false will only produce stronger belief in P, overall.

The problem with the strong version is that it’s too strong. It proves too much. The total uselessness of argument. And the problem with the weak version is that it’s too weak. Everyone knows it already and it’s not a decisive consideration, on its own, in any given case.

You are waffling between strong and weak, it seems to me. This produces a kind of ersatz pragmatism, in the place of which I would recommend: actual pragmatism. Obviously you have to worry about your rhetoric backfiring. Every kind of rhetoric can backfire. Saying something can backfire. Saying nothing can backfire. Being rational can backfire. Just insulting people in an emotional way can backfire. In this case, you are sure that what I have said will backfire. The question is: why? Obviously vasvas is right that you think I am in danger of swaying the vast sea of undecideds in the wrong way. But my question is: why do you think that? Do we see any evidence that my post is converting people who were previously skeptical of Shelby into credulous Adlerheads? I don’t see it. So I am skeptical that there is some sea of undecideds out there that I am swaying the wrong way.

You are charmed, in the abstract, by the possibility of inadvertently shifting the Overton Window in the wrong direction by drawing attention to a bad argument. It’s interesting that that sort of thing can happen – yes, I quite agree. But you have to push on to the next stage. Given that it’s possible this is happening, is it actually happening?

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Rich Puchalsky 07.15.13 at 9:09 pm

“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.

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Tom Bach 07.15.13 at 11:20 pm

By it always already standing Supreme Court decisions and popular discussions of the same have, lets call it, intellectual heft.

Proving that a decision and its (few and thin) defenses are wrong and silly is an important step in convincing readers or whatever degree of education and/or sophistication of the thinness and silliness of the SC decision is a key first step to offering an opportunity to suggest the nefarious motives of the writers and supporters of such thin and weak SC decisions.

I am baffled at the heat dedicated to deprecating those attempts to deligitimze the intellectual bona fides of the decision as I am by the attempts to refuse to accept that the why of decisions is of equal value in offering readers a holistic understanding of the decision’s awfulness.

In short, why are we fighting?

Rich is, I think, wrong to disparage the deprecation but the depracators, should that be a word, are wrong to deny the need to make that point that the sloppy and weak argumentation serves to promote the agenda of a bunch of louts and horrid little men.

The tragedy of 1848 wasn’t just the defeat of a liberal constitution order but rather its defeat because the liberals refused to make common cause with those on their left in the vain hope of convincing the unconvincables on their right.

To be honest, I doubt that anyone thinks that Adler et alia are convicinable but there exists, I fervently hope, a large number of convincibles who might one day accept that because the argument is so thin and shallow and, consequently, wrong that the desired outcome, the 19th century with fewer trains, is less than desirable.

But then again I had long hoped that the German Enlighteners would convince their readers that there was no lady in white.

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John Holbo 07.16.13 at 2:40 am

“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.”

I agree that it’s highly unlikely that the right sort of sea of undecideds would exist for your hypothesis to be born out, i.e. a throng of CT readers, all starting out skeptical of Shelby to just the right degree for my post to have the specified, unfortunate reverse effect on them. That’s my point, Rich. You have to look at the world and see if it is actually the sort of place where the things you say are sure to happen are likely to be happening. Rhetorical analysis can’t just be a sort of one-size-fits-all transcendental Barnumism. And on that note, I think I’ll sign off from this thread. I believe I’ve extracted all the bemusement I’m likely to get out of it.

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Rich Puchalsky 07.16.13 at 3:08 am

There is no vast sea of undecideds reading CT, and only insofar as people outside the usual crew read your posts can they have the effect that I’m talking about (or, indeed, any larger rhetorical effect). That was why I said that I’d have to look at the comments on Volokh. Perhaps there is no sea of undecideds on Volokh either, but there’s certainly the potential for tribal boosting of the argument until they do encounter it as a typical liberal/conservative dispute. If the argument doesn’t ever encounter anyone outside the group of people who already agree with it, then I agree that it’s pointless to wonder what kind of effect it’d have.

I think I’ll give up on this one too.

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Andrew F. 07.16.13 at 5:00 am

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.

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Pub Editor 07.16.13 at 2:23 pm

Andrew F. @141:

I looked for the words “bail-in” and “bail-out” in your analysis, but I couldn’t find them.

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

As a theoretical matter, not difficult. As a political matter, getting a new coverage formula through Congress (either in 2006 or today) is almost certainly a bridge too far.

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politicalfootball 07.16.13 at 3:34 pm

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.

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vasvas 07.17.13 at 10:39 am

” I don’t much evidence that anyone is fooled by Adler here”

A. “Here” is not relevant. 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.

B. If no-one is fooled, (here or elsewhere) then I’m a bit baffled: why is the analysis still necessary? In your case, for example, you seem to say you recognize the argument immediately as racist apologetics, yet needed the post to see it as baseless from a legal argument standpoint. I guess it could be the case that well constructed arguments that support racist goals or outcomes could be constructed. I guess an important question is whether it’s necessary and useful to engage competent arguments for patently unethical goals/projects.

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Barry 07.17.13 at 11:37 am

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

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

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Anderson 07.17.13 at 12:47 pm

“A. “Here” is not relevant. 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.”

That makes no sense. “If the entire world doesn’t read John’s post and the comments thread, then John’s post is objectively pro-racist!”

No wonder some people have to deny the value of argument, when they’re so bad at it. Hint: it’s not us, it’s you.

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Pub Editor 07.17.13 at 1:52 pm

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.

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politicalfootball 07.17.13 at 2:42 pm

I endorse Luther’s refusal to accommodate the Anti-Christ. Of course, if the Pope isn’t the Anti-Christ, that’s a different matter.

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vasvas 07.17.13 at 3:10 pm

“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).

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Mark Field 07.17.13 at 6:21 pm

I’m personally happy to be placed alongside Anderson in the category “respected academics”. For once, my kids didn’t get to vote.

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Anderson 07.17.13 at 6:43 pm

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 ….

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Mark Field 07.17.13 at 6:54 pm

LOL at “respected academic.” I am neither.

I knew those quotes were there for a reason.

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Rich Puchalsky 07.17.13 at 7:02 pm

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.

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politicalfootball 07.17.13 at 7:27 pm

“Here” is not relevant. 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.”

I’m afraid I share Anderson’s befuddlement, and then some. My participation in this thread began with an emphasis on the utility of “calling out the racism,” and the comment to which you respond discussed that theme in the paragraphs immediately prior to the phrase you quoted.

So not only do I think it’s important to call out racism, as best as I can tell, nobody disagreed with me on this until Pub Editor in 147, and Pub Editor is objectively pro-Antichrist.

Anderson correctly understood that by “here,” I was using CT as an example to talk about readers of Crooked Timber and similar commentary. So I viewed your response the same way Anderson did, and I still don’t understand what claim you are making if you’re not saying something about people who don’t read commentary similar to that in CT.

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Anderson 07.17.13 at 7:46 pm

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.

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Pub Editor 07.17.13 at 7:59 pm

Pub Editor is objectively pro-Antichrist

Thank you for my new motto.

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politicalfootball 07.17.13 at 9:14 pm

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.)

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Andrew F. 07.17.13 at 9:31 pm

Pub Editor @142,

Re bailout/bail-in provisions:

I don’t see how these save the formula. The bail-in provision is under Section 3, I believe, and is still in effect. It is not dependent on the formula. I’ll get to the bailout provision in a moment.

The purpose of the formula is to identify states that currently require coverage in order to ensure compliance with the 15th Amendment. Indeed, Ginsburg argued that Congress reauthorized the formula on the basis of evidence of the presence of second generation discriminatory practices and racially polarized voting within the jurisdictions captured by the formula, i.e. that the formula was designed to capture jurisdictions in which current conditions justify the imposition of preclearance.

The bailout provision is important, but it doesn’t render the coverage formula itself any better at achieving its purpose of identifying states on which the preclearance regime should be imposed. For example, if the coverage formula were “all states in which more than 40 inches of snow fell in December of 1942,” the bailout provision would not render the formula itself any more rational, even if the provision ameliorated the errors. We can’t say, “oh okay, the formula itself is silly, but the bailout provision reduces the harmful effects of any type 1 errors caused by it, so we can ignore the formula.” The formula is significant in itself, even if you think that its only effect is to select which jurisdictions must meet bailout qualifications (which, one imagines you would argue, are rational).

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Anderson 07.17.13 at 9:38 pm

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.

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Pub Editor 07.17.13 at 10:14 pm

Re: Andrew F. @ 158:

In the Court of Appeals decision that SCOTUS reversed, the majority opinion pointed out that the coverage formula is an act of reverse-engineering. So, Congress in 1965 determined that there was a problem in certain states, and then it crafted a coverage formula that embraced those states.

In reauthorizing the VRA in 2006, Congress did conduct hearings and collect evidence, and evidently concluded that the same coverage formula (in conjunction with the bailin and bailout provisions) would work to embrace the states that they had determined, based on other evidence, should be subject to preclearance.

I would have been happier if Congress crafted a new formula, but I gather that a new formula was not politically possible, even in 2006. I believe that judicial deference to the judgment of the legislative branch requires that, when Congress made findings and then decided that the old formula would embrace the states that Congress wanted to cover (with the bailout provision as a safety hatch), the Court should have deferred to the judgment of Congress.

“oh okay, the formula itself is silly…”

Except that the Court has held, on previous occasions (1966, 1983, etc.) that the formula was not silly then. This would seem to distinguish the section 4 coverage formula from your “December 1942 Snowfall” formula.

bailout qualifications (which, one imagines you would argue, are rational)

I happen to think that the current bailout provision is perhaps too difficult (since it requires a record of 10 years and gives a lot of power to the US Attorney General to affect whether a subdivision will be able qualify), but that is a policy judgment. Congress has embraced the current bailout provision, and it certainly seems rational to me.

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Anderson 07.17.13 at 11:15 pm

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.

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Pub Editor 07.17.13 at 11:27 pm

I assumed that “rational” in this context had the same meaning as in the term of art “rational basis review.”

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Anderson 07.17.13 at 11:30 pm

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?

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Andrew F. 07.18.13 at 1:42 am

Pub Editor, Anderson,

The “reverse-engineering” argument is certainly one defense: Congress conducted an investigation, and used the facts to pick out the states they wanted to cover, and fortuitously the existing formula happened to cover (or even just roughly cover) those states, so they simply reauthorized this formula. But it doesn’t appear that Congress actually did that. They held hearings, and compiled reports, to be sure. But they didn’t evolve any set of principles that would, applied jurisdiction by jurisdiction, capture just the states captured in the old formula.

Now, of course under the most deferential version of the rational basis test, it’s not necessarily relevant whether Congress did or did not have a particular rationale in mind (assuming for the sake of argument that the notion of legislative intent is coherent); we just need to be able to conceive of one. And so we have the Katz study, and some other stats and anecdotes, that roughly distinguish the covered states as a whole from the non-covered states as a whole.

And under that most deferential test, I agree that the coverage formula should stand.

Obviously, that’s not the test being applied here, although the dissent wants it to be. Nor is it necessary to read Katzenbach as requiring that such a test be applied to the coverage formula. The coverage formula guides the application of the “extraordinary” remedy of preclearance. It is a remedy, such a description implies, that is at the border, the outer limits, of the enforcement power granted by the 15th Amendment. And it is at such borders that, imho, the Court must be more engaged in determining whether lines have been crossed.

I think that, whether looking at federal power under Art 1 sec 8, or looking at enforcement power under the 14th, the Court has in fact adopted such a practice of looking more closely when the exercise of the granted power approaches the borders of the power granted. I also think it’s appropriate for SCOTUS to do so.

So I don’t have a problem with the level of scrutiny being applied. I also think the result is probably correct, all things considered.

I’m more dubious of the sovereign equality principle as applied here. I can see how the principle can flow from, and cohere well with, other principles of federalism, and I agree at least that it has been explicitly noted in other cases, but obviously this is not a principle that has received much definition or elaboration in other cases, afaik. Nor does it receive much definition or elaboration here. Although the majority’s use of the principle enabled it to issue a narrower holding than it might have otherwise, the use of the principle to decide a case like this implies that it carries significant weight, that it is of great consequence. And so the absence of elaboration of the use and limits of the principle creates uncertainty and multiplies opportunities for judicial mischief. I would have preferred the majority, if it is to use such a quiet principle, allow the principle to speak at greater length, and in defining itself, also thereby limit itself.

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Pub Editor 07.18.13 at 1:59 am

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.

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Anderson 07.18.13 at 2:02 am

“I’m not sure where in his opinion C.J. Roberts indicated the level of review being applied. “

He didn’t. Ginsburg spanked him for that. A 1L would know to state the standard up front; it wasn’t an accidental omission.

(Really, iPhone? I was more likely to write “spangled” than “spanked”?)

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Barry 07.18.13 at 2:29 am

“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.

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Andrew F. 07.18.13 at 3:27 am

Eh, it’s not entirely unusual for SCOTUS to analyze a case without clearly defining a level of scrutiny (see the volume of commentary Windsor is generating on that question), especially if the issues it wants to address may not fit well with existing defined levels of scrutiny. If the Court were rendering a holding on Section 5, I would expect some discussion of “congruence and proportionality” (which is what many had expected). But since the Court did not really consider Section 5, a congruence and proportionality analysis (whatever the hell that would be – and the answer is whatever the majority wants it to be, as it’s largely undefined) would be an odd fit. A levels of scrutiny analysis along the lines of an equal protection clause approach would also be inappropriate and misleading.

This is an area where the majority opinion is appropriately cautious in signaling Congress as to how defensible a law along the lines of the coverage formula must be. Its caution is especially warranted given its use of this “equal sovereignty” principle.

Put it in the rational basis plus category, if need be.

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Pub Editor 07.18.13 at 3:29 am

“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.”

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Anderson 07.18.13 at 1:41 pm

The “caution” of the majority was nonexistent, as readers of the dissent, or even of this thread, will see.

As for the rigors of bail-out, those were for the very good reason that the covered jurisdictions had a long record of being shifty weasels; that record justified preclearance, and the continued record of resistance, debatable only by National Review subscribers and their ilk, fell well within the bounds of a sufficient basis for renewal.

If Mississippi could not go 10 years without fucking over black voters, too bad for Mississippi.

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Andrew F. 07.18.13 at 11:37 pm

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.

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Anderson 07.19.13 at 12:17 am

“On whether preclearance remains justified: perhaps, but that’s a question that the majority purposefully avoided”

The point is that Section 4 had ample evidence. Whinging about arduous bail-out ignores that the 10-year rule was actually a liberalization enacted in 1982. Congress could have further loosened the rule had that seemed proper; large majorities thought not.

There is no defense of Shelby County under the standard set by Section 2 of the 15th Amendment, which is why Roberts had to borrow “equal sovereignty” from his secessionist mentors. Consider: IF Section 4 flunked RB, then the equal sovereignty stuff would be irrelevant. That tells you all you need to know.

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