John Roberts, Shelby County, and stare circulus jerkus

I understand that Amel Ahmed is ultimately on the right side of the voting rights issue, but there is no context in which the phrase “John Roberts was right” should appear in a discussion of Shelby County, unless the question is whether his clerks spelled his name right.

To make one additional point about the risible “equal sovereignty of the states” doctrine Roberts resurrected from the antebellum slave power, it’s a classic example of conservative hacks citing their own bare assertions in dicta as if they settled legal disputes. In Shelby County, Roberts gets very pissy about the dissent’s refusal to take his exhumation of an (uncited) Roger Taney with sufficient seriousness: “the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin’s emphasis on its significance.” Ah, I get it — there wasn’t really a defense of the “equal sovereignty” doctrine in Shelby County because he already defended in a Northwest Austin dictum. So here’s his defense of the “equal sovereignty of the states” theory from Northwest Austin, in its entirety:

The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.

So let’s see. We have a bare assertion that the doctrine Roberts just made up reflects a “historic tradition.” We have two land rights cases that deal with state boundaries prior to their admission to the union (one from prior to the civil war), and an 1969 case dealing with the legality of secession (Roberts’s “see also” is a nice giveaway that the precedent is wholly irrelevant.) And finally, we have South Carolina v. Katzenbach, which has the advantage of being relevant to this case but the disadvantage of pointing out that the “doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” (Note what Roberts leaves out of the relevant quote to make it less damning; if nothing else, this opinion demonstrates a consummate mastery of bullshit.) None of the other cited precedents contradicts Katzenbach‘s holding. In other words, Roberts has nothing — no constitutional text, no relevant precedent, no constitutional tradition, not even an actual argument. Shelby County relies on citing this nothing as the controlling precedent. As I quote Richard Posner as saying in the linked piece, the decision “rests on air.”

There’s an additional scam being pulled here. Roberts tries to get some authority for his worthless Northwest Austin arguments by noting that the opinion “joined by two of today’s dissenters,” suggesting that it reflects a consensus about basic principles. But this is the legal equivalent of pretending to believe that the position-taking of public officials must represent nothing but sincere, unfettered policy preferences. (Some liberals have the same problem with Sebelius, believing that Stephen Breyer voting for the most liberal spending power position that could command five votes means that the Supreme Court justice with perhaps the most expansive vision of federal power in history is suddenly going to start voting with reactionaries to randomly rule exercises of the spending power unconstitutional. It’s theoretically possible, just as it’s theoretically possible that Roberts is going to start frequently acting as the swing vote with the four liberal justices, but it’s really not how to bet.) But we all know this is silly. Ginsburg and Breyer joined the Northwest Austin majority because the only alternative that could command a majority was…Shelby County. In retrospect, as RBG acknowledges, this was probably a mistake, but it’s remarkably disingenuous to suggest that every member of the Northwest Austin majority subscribed to every dictum in the opinion. In fairness, though, it’s not as if Roberts had a better to argument to make, and if my opinion had been shredded as mercilessly as Ginburg’s dissent did to Shelby County, I wouldn’t be in a great mood either.