Law

Will the Supreme Court Strike Down Affirmative Action?

Adam Liptak and Allison Kopicki recently had an interesting analysis of public opinion on the Supreme Court. The public reaction to the health-care ruling, NFIB v. Sebelius, shows that the public is closely divided, with 46 percent supporting the decision. As expected, NFIB has made Democrats like the Court more and Republicans like the Court less. Putting the public reaction to NFIB in context, Liptak and Kopicki compare the public reaction to the case with other high profile cases. The data is somewhat sobering for advocates of civil rights and liberties. Before getting to the bad news, it's worth noting that despite the cottage industry of pundits dedicated to the idea that support for women's reproductive rights is undermining the Democratic Party, Roe v. Wade is an exception to the general rule of liberal civil-liberties decisions being unpopular. Roe was popular the day it was decided and its popularity has, if anything, increased over time . Conversely, Gonzales v. Carhart ,...

What's the Deal with the Pennsylvania Voter-ID Law?

"I voted" picture: (Flickr/ Vox Efx) Liberty Bell photograph: (Flickr/dcwriterdawn)
We get it. Real-life court dramas are not as exciting as Judge Judy (and definitely not as exciting as Judge Joe Brown). So we totally don't judge you for not knowing why the hell Pennsylvania's voter-ID law is suddenly in court. Of course, you thought you'd covered your bases when you read our early explanation of voter-ID laws. (If you didn't, well, you only need to be a little embarrassed.) You know there's basically no evidence of in-person voter fraud where one person impersonates another—the only type of fraud voter ID guards against. You know that the big fights were in Texas and South Carolina. So why is everyone so worked up about some court case in Harrisburg? Well let us be quick and leave you plenty of time for Court TV. So a bunch of states have voter-ID laws—what's the big deal about Pennsylvania? Well, not shockingly in a presidential election year, a lot of it boils down to politics. Pennsylvania is a swing state in a close election, so every vote each side can pull...

Eric Holder's New Fight Against Voter ID

(Flickr/Vox Efx)
Yesterday, Eric Holder opened a new front in his fight to preserve voting rights, as the Department of Justice announced that it would launch an investigation into Pennsylvania's voter ID law. The attorney general has been an outspoken critic of the strict new laws that require voters to show government-issued photo identification, calling them the equivalent of a modern-day "poll tax." The DOJ has blocked implementation of voter ID in Texas and South Carolina—states that, because of their histories of voter suppression, are listed in Section 5 of the Voting Rights Act and therefore must get preclearance from the DOJ before they can change their election laws. (Both states are fighting back in court.) But Pennsylvania, like half the states that have passed strict voter ID laws, does not need to get DOJ permission before it changes its election laws. Instead, the Justice Department has taken an entirely new line of attack. In a letter to Pennsylvania's Secretary of the Commonwealth,...

How the Gun Lobby Encourages People to Amass Arsenals

Flickr/bobasonic
In the last six months I've written a lot about the politics of the gun issue (see here for example), and one of the key data points I keep trying to get people to understand is that gun ownership is actually declining in America and has been for a few decades. Yet there are just as many guns as ever (around 300 million by the best estimates), which means that on average, your typical gun owner now owns more guns than they used to. While no one that I know of has actually figured out the distribution, my guess is that most gun owners still have only one or two guns, while the numbers are being elevated by enthusiasts who think they really haven't guaranteed the safety of their family unless they have enough weaponry to fend off an assault by an entire battalion of the Red Army. And it's important to understand that the gun lobby (by which I mean the National Rifle Association, similar groups, and the gun manufacturers) are doing everything they can to encourage existing gun owners to...

Do We Need a New Voting Rights Act?

(Flickr/Sunset Parkerpix)
On Friday, two counties in Southern states requested that the Supreme Court reconsider a key element of the Voting Rights Act . Both Kinston, North Carolina and Shelby County, Alabama hope the Court will find that Section 5 of the Act—the one that requires states and counties with a history of voter suppression to get permission from the feds before implementing changes to election law—is unconstitutional. The government has previously justified Section 5 under the Fifteenth Amendment, which guarantees the right to vote and prohibits discrimination based on race. The counties—both in states with new voter-ID laws—argue that the provision violates the Tenth Amendment, which gives states the right to regulate elections. Furthermore, they claim it unfairly gives states different levels of sovereignty by treating some differently than others. With voter-ID laws proliferating around the country, the Voting Rights Act has been in the national conversation for months now, and Section 5 has...

A Tragedy Made in the USA

Finding meaning in national tragedy is always difficult, but what do we do when we peer into the abyss and see ourselves?

(Flickr/Alan Cleaver)
This past Friday was one of those strange and sad days in the life of a country when a number of things don’t so much converge as share the commonality of the moment and thereby exist within the shadows of each other. The massacre that greeted the release of the year’s most-awaited movie just a few midnights ago in a tiny Colorado town took place at cross-coordinates social, cultural, and political by virtue of timing and the parameters of the occasion, if nothing else; though the more terrible the toll in such circumstances, the more natural it is to draw conclusions, learn lessons or arrive at resolutions, the only thing straightforward about any of it is the horror. The most immediate responses, having to do with gun laws and the movie itself, were predictable, understandable in varying degrees and not altogether to the point. If those of us who believe in sensible restrictions on the constitutional right to bear arms are being honest, we have to acknowledge that the sort of...

Sorry, Still Not Over Bush v. Gore

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Antonin Scalia was a guest on Piers Morgan's show last night, and he was relatively entertaining and at times even said things I agree with. For example, even in the wake of the Republican bait-and-switch on the DISCLOSE Act, Scalia held firm to his previously expressed view that it's permissible and desirable for people making large political donations to have these donations disclosed. This is a welcome contrast to the Sarah Palin/Mitch McConnell theory of the First Amendment, under which powerful actors trying to influence the political process have the right to be shielded from criticism or any other consequences. On the other hand, there is a self-congratulatory aspect to Scalia's pronouncements about jurisprudential theory that remain grating in light of his actual work on the Court. As always, he presents himself as "The Last Truly Principled Judge in America," adhering to the fundamental principles of the text of the Constitution while other judges preempt democracy by...

Penn State Redux

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How in the world did Penn State allow assistant coach Jerry Sandusky to molest children—sometimes on its grounds—for 11 years without notifying authorities? That's the question the institution hired former FBI director Louis Freeh's consulting firm to investigate in-depth. This morning, Freeh's task force released its independent review—which is just as damning as you can imagine, saying that all the key people, Paterno included, "repeatedly concealed critical facts" to protect the institution rather than the victims. Here are the key findings from the executive summary: Four of the most powerful people at The Pennsylvania State University—President Graham B. Spanier, Senior Vice President-Finance and Business Gary C. Schultz, Athletic Director Timothy M. Curley and Head Football Coach Joseph V. Paterno—failed to protect against a child sexual predator harming children for over a decade. These men concealed Sandusky's activities from the Board of Trustees, the University community and...

Could the Voting Rights Act Be Struck Down?

(Flickr/ezola)
Texas doesn't have an air-tight case when it comes to the stringent voter-ID law that's currently having its week in court. Even Fox commentator Judge Andrew Napolitano said he expects the state to lose . And according to Politico , the Department of Justice (DOJ) has promised to show not only that the voter-ID law will have a discriminatory effect but that such an effect was intentional. Texas's case, meanwhile, rests on two different arguments: First, that the state needs a voter-ID law to combat voter fraud, and second, that the state should not have to obtain preclearance—as required by the Voting Rights Act—for changes in its election law in the first place. After failing to do so in years past, Texas's GOP-dominated legislature passed a stringent voter-ID law in 2011. Under this law, only a few forms of identification are allowed: driver's licenses and state-issued identification cards, military IDs, citizenship certificates (with photos), passports, and handgun licenses. But...

When Is Judicial Behavior Political?

(Flickr / s_falkow)
The debates about Chief Justice Roberts’s motivations for his health-care opinion rage on with new leaks appearing almost every day. Randy Barnett responds to Jonathan Adler’s attempt at showing that Roberts’s opinion is quite consistent with his past judgments: But this does not [make] his bending himself into a pretzel to uphold a law when the screws were put to him any less political. [..] 8 justices acted on principle: 4 on good principles and 4 on bad principles. This probably reflects the majority view among legal scholars, although they differ on precisely which four justices acted on “good principles.” Nonetheless, to imply that this principled behavior is non-political is a bit silly. Indeed, Barnett writes that: It is hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future (as many did up until now). Whether or not the decision does lasting damage to the Constitution and the Court, however, itself will depend on...

Should Liberals Be Mad at Kagan and Breyer?

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While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money. Despite the consequences and dubious logic of this holding, however, it was joined by two of the Court's Democratic appointees: Clinton nominee Stephen Breyer and Obama nominee Elena Kagan. Given the escalating conservative outrage over Roberts's joining with the Court's more liberal faction on the other key elements of the case, several writers have wondered: Where's the liberal outrage against Breyer and Kagan? "In contrast to all the weeping and wailing that has accompanied what...

Florida's Voter Purge: What the Hell?

(Flickr/ldcross)
With a tangle of lawsuits and legal complexities, it's easy to get lost in the minutiae of Florida's voter-purge debacle. Last week, as a U.S. District Court ruled on one of the disputes between the Department of Justice and the state of Florida, most of the media discussion focused on who'd won and who'd lost in the rather nuanced court opinion. More legal action comes next week, and the discussion will likely be similar. At its core, though, this is a story of how Florida's secretary of state cast suspicion on thousands of perfectly legitimate voters. Waving around a list of 180,000 potential non-citizens and sending out a sample of 2,700 to elections officials, the state's methodology was deeply flawed. Many of those identified had immigrated to this country and completed the arduous path to citizenship. Now they're at risk of being kicked off voter rolls. With voter-ID laws gaining popularity in states across the country, the purge constitutes a new front in the battle to protect...

What's the "Chief Purpose" of Marriage?

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Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review 's group blog. In response, I noted that we agree , in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers. Maggie responded, paraphrasing me incorrectly (which, all right, isn't misquoting exactly, but which still puts words in my mouth that I would never say, imply, or think) this way: E. J. says we agree that gay marriage in some nontrivial way disconnects marriage, sex, and diapers. It reduces the connection between marriage and its erstwhile chief public purpose: regulating responsible procreation. No, Maggie, that's not what I said. I said that same-sex couples are...

Nine Percent of Pennsylvanians May Not Be Able to Vote for Lack of ID

(Flickr/Katri Niemi)
The debate around voter ID laws is generally one about protection versus disenfranchisement. Advocates of the laws, which require photo identification to vote, often say the law won't have an impact anyone who's voting legally. In Pennsylvania, the Secretary of the Commonwealth assured lawmakers that 99 percent of voters in the state had the necessary identification, and promised that " No one entitled to vote will be denied that right by this bill. " Her views were echoed by Republican lawmakers throughout the state who pushed for the measure. You need a photo ID for everything these days, the logic seemed to go, so why not voting too? After all, who doesn't have a photo ID? Well, a lot of people. The Secretary of the Commonwealth put out a press release Tuesday announcing that 9 percent of registered voters didn't have photo IDs from the state Department of Transportation. Pennsylvania's voter ID law, which became law March of this year, allows voters to use a variety of types of...

The DOJ Takes Aim at DOMA

Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases ( Gill v. OPM ) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs. It’s because of DOMA Section 3 that I’m married in Massachusetts but not in the United States. If that were overruled, the federal government would have to treat me as married, for purposes such as taxes, social security, inheritance, and so on. I wouldn’t have to file as single hither but as married yon. You recall the backstory here, right? Last year, Obama’s Justice Department declared that it...

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