Justice Who Joined Shelby County Has No Idea What Shelby County‘s Holding Is
By In the aftermath of the most disgraceful opinion handed down so far by the Roberts Court, Paul observed that “[t]he majority opinion in Shelby County v. Holder is the worst SCOTUS opinion I’ve ever read, considered simply as an exercise in formal legal argument. And I’ve read Bush v. Gore.” But if you don’t believe him, believe the same point being inadvertently being made by Antonin Scalia:
That last line came while Scalia was answering written, prescreened anonymous questions. The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning. Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question. I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.
It’s not surprising that Scalia fumbled the question, since Roberts’s majority opinion never gets around to explaining what standard of review the Court was applying, which would be indefensible in any context and is abominable when the Court is gutting the most important civil rights legislation passed by Congress in the 20th century. Nonetheless, Scalia’s answer has to be wrong, simply because the idea that Section 4 of the Voting Rights Act fails rational basis review is absurd. Congress did extensive investigations, and it included a bailout provision permitting states to show that they did not require federal supervision. This more than meets any rational basis standard. The only way to defend the outcome of Shelby County is if the Court is applying some kind of heightened scrutiny. But the Court has no basis for applying heightened scrutiny, because there is no constitutional requirement that Congress treat states equally. Roberts, between two opinions, has his bare assertions but no relevant text or precedent to cite in defense of this doctrine, and the only relevant precedent went uncited for obvious reasons.
The failure of the Roberts Court to even explain what it was doing is terrible in itself, and terrible going forward because the Court provided no meaningful guidance to Congress or lower courts. Scalia’s inability to coherently explain what the Court was doing is comic in a way, but when you consider the implications it’s the farthest thing from funny.
On a related note, why Scalia’s humiliating botch in last week’s EPA decision matters.