Civil & Human Rights

Posted by AzBlueMeanie:

Mark Graber at Balkinization blog (balkin.blogspot.com) makes a point that struck me about Chief Justice John Roberts' majority opinion in Shelby County today. The Missing Amendments:

From 1861 to 1865, the United States fought a civil
war.  The outcome of the war were three
constitutional amendments, military rule in the south, and numerous federal
laws minutely regulating political procedures in the former confederate states.  The constitutional significance of the Civil
War and Reconstruction remains a source of political and scholarly debate, but
no one denies that something of great constitutional importance happened during
the 1860s.  Until today.

One of the
most remarkable features of Chief Justice Roberts' opinion for the Court in
Shelby County v. Holder is the almost complete absence of any reference to the
Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil War, or anything
that happened during Reconstruction. The
only provisions the Chief Justice deemed relevant were the Necessary and Proper
Clause of Article I and the Tenth Amendment [the court uses an "equal state sovereignty" principle to invalidate the federal law].

In this new world, the Civil War and
Reconstruction never occurred or, as the Dunning School maintained, they
were blots on American constitutionalism that ought to be erased. The Roberts opinion reads as if a new legal principle is emerging, later
constitutional provisions are interpreted and modified in light of earlier
provisions, rather than earlier provisions being interpreted in light of later
provisions.

Posted by AzBlueMeanie:

The U.S. Supreme Court this morning struck down the coverage formula provision of the Voting Rights Act, Section 4. Chief Justice Roberts writing for the Court held that Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.

Chief Justice Roberts writes that Section 4 is unconstitutional in light of current conditions. In 1966, the formula was rational in both practice and theory. Coverage today is based on decades-old data and eradicated practices. The Court makes clear that "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula [of Section 4]. Congress may draft another formula based on current conditions."

Posted by AzBlueMeanie:

The U.S. Supreme Court this morning ruled on Fisher v. Universtiy of Texas, the affirmative action case which has been pending since last October. In a 7-1 decision (Justice Kagan is recused in this case), Justice Kennedy wrote the majority opinion for the court, with Justice Ginsberg the loan dissenter.

The Court ruled that the Fifth Circuit court's grant of summary judgment is vacated, and the case is remanded back to the Fifth Circuit, because the circuit court did not apply the strict scrutiny standard of review articulated in the Grutter and Bakke affirmative action cases in granting summary judgment. "The
reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

There was a concurring opinion by Justice Scalia, who said that because the petitioner did not ask the Court to overrule Grutter, he joins the opinion of the Court in full. This is a hint to the petitioner to ask the Supreme Court to overrule Grutter when this case returns to the Supreme Court after a decision on remand.

There was also a concurring opinion by Justice Thomas who, unlike Justice Scalia, did not want to wait for procedural due process. Justice Thomas said that he was ready to overrule Grutter now.

Posted by AzBlueMeanie:

The U.S. Supreme Court has saved its most controversial cases for the last week of the 2012 term. Monday is orders and opinions day, and an additional opinions (and possibly orders) day is likely to be announced on Monday. The Court has eleven merit decisions to announce this week — it is unlikely that all eleven will be announced on Monday.

Kedar Bhatia at SCOTUSblog.com has a summary of the eleven merit decisions of the 2012 term to be announced this week. Merits cases remaining for October Term 2012. Here are the cases to watch:

Fisher v. University of Texas at Austin 11-345 – Affirmative Action in college admissions.

Vance v. Ball State University 11-556 – Supervisor liability under Title VII of the Civil Rights Act of 1964.

Koontz v. St. Johns River Water Management District 11-1447 – Land use takings claim.

Shelby County v. Holder 12-96 – Voting Rights Act Section 5 preclearance constitutional challenge.