P.S. HuffWednesday, May 28, 2008
This piece of commentary--apparently serious--is among the most confused I've ever read. Because Justice Scalia does not believe the Fourteenth Amendment's Equal Protection Clause envisions fetal life when referencing "person[s]," the author concludes (with evident outrage) that Scalia must not respect the lives of the unborn.
But of course, the justice simply views Fourteenth Amendment personhood as a lawyerly concept, rather than a philosophical question. Justice Scalia's interpretation of the Equal Protection Clause may be right, or it may be wrong; but it certainly tells us nothing about his take on sound policy.
Alas, the author's disregard for this distinction is all too common. Popular commentary on constitutional law almost invariably calls to mind the quotation, attributed to Justice Black, that "[t]he layman's constitutional view is that what he likes is constitutional and that which he doesn't like is unconstitutional."
P.S. HuffTuesday, May 27, 2008
Earlier today, the United States Supreme Court decided Riley v. Kennedy (PDF, HTML), an intriguing (if not exactly blockbuster) 1965 Voting Rights Act case. At issue was Section 5 of that Act, which famously requires covered states and political subdivisions--Alabama among them--to obtain "preclearance" from either the DOJ or the District Court for DC, before implementing a change in its practices respecting voting.
At the time the Voting Rights Act was adopted, Alabama law provided for midterm vacancies on county commissions to be filled by gubernatorial appointment. A 1985 "local law" of the Alabama legislature, however, changed the rule for Mobile County; in some instances, a special election was to be held instead. This 1985 Act was pre-cleared, and in 1987, a special election was held pursuant to it.
So far, so good. But shortly thereafter, the Alabama Supreme Court held that the 1985 Act violated the state's constitution. Happily, the governor responded by simply appointing Samuel Jones, the winner of the special election, to the county commission.
Almost two decades passed before the next midterm vacancy on the commission occurred. But when, in 2005, it did, controversy arose. The governor filled the vacancy by appointment. Yet given the 1985 Act and the special election held under it, was gubernatorial appointment now a "change" requiring preclearance under the Voting Rights Act? What about the state supreme court's judgment that the 1985 Act was invalid?
By a vote of 7 to 2, the Court held that preclearance was not necessary. Notably, however, the majority opinion's reasoning is quite narrow. The Court did not, as Rick Hasen of Election Law Blog had feared it might, adopt the narrow, textualist reading of Section 5 offered by Chief Justice Roberts at oral argument. (For that, click here.) Rather, Justice Ginsburg wrote a rather "restrained" opinion for the Court, finding that the 1985 Act was never "in force or effect" for purposes of Section 5. The Court's opinion makes much of "an extraordinary circumstance" present in the case: "The [1985] Act was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court."
The bottom line is that yet another potentially-divisive case is decided by a lopsided margin.
P.S. HuffSaturday, May 24, 2008
From the New York Times: "Microsoft said Friday that it was ending a project to scan millions of books and scholarly articles and make them available on the Web."
But on the bright side, Google Book Search will live on.
