Friday, January 29

Change kept a-rollin' all term long?

Nevermind the Obama-Alito faux theatrics,
Linda Greenhouse drops a nice line* in this essay examining where the Roberts court will go next, now that it's over the initial impulse to hold back and not make waves:

Three years ago, after Chief Justice John G. Roberts Jr. led the Supreme Court to the brink of overturning a few precedents but then blinked, a frustrated Justice Antonin Scalia accused the chief justice of “faux judicial restraint.”

It was foreseeable then that something would have to give: either the faux or the restraint. Now we know. Goodbye to restraint.
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But while I’m unsure of the decision’s impact on the political system, I have no doubt about its impact on the Supreme Court itself: the Roberts court has lost its virginity.*

The question now is what the Roberts majority’s next target will be — where will the court’s raging judicial hormones lead it next, now that it has experienced the joy of overturning?
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In more genteel times, the court waited, like a girl at the senior prom, to be asked to dance. It contented itself with answering the questions posed by the parties, and didn’t order them to make more sweeping arguments. The first 19 pages of Justice Kennedy’s opinion [in Citizens United] – and nearly all of the concurring opinion that Chief Justice Roberts filed – explain defensively why the court sped past every available off-ramp on its way to its desired destination in this case
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The majority’s decision in Citizens United sheds retrospective light on that shameless performance in the Voting Rights Act case. There is an unresolved debate over whether the court’s punt was an exercise in judicial restraint by Chief Justice Roberts, who wrote the opinion, or whether, to the contrary, it resulted from his failure to round up sufficient votes to declare the challenged section of the act unconstitutional – the path the court seemed to be on when the case was argued. Citizens United fortifies my belief that a failure of nerve, and not ambition, led to the result in the voting rights case.

Which brings me back to the question of what’s next. I don’t believe it’s Roe v. Wade...

A target that does bear watching is the heavily freighted civil rights issue that the court raised and then skirted last June in the New Haven firefighters case, Ricci v. DeStefano....

The original Title VII, in 1964, prohibited “disparate treatment” on the basis of race. In 1991, Congress amended the law to prohibit employment policies that have a “disparate impact” as well.
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The decision avoided a tricky question: suppose the racially disparate impact of a municipal employment policy is so grave that the Civil Rights Act requires a remedy that itself takes race into account – in other words, a remedy for disparate impact that requires disparate treatment.

The court’s current majority has made clear that for the government to count individuals by race for almost any purpose is a violation of constitutional magnitude. So how could a statute that could require such an outcome be constitutional? In the New Haven case, Justice Kennedy left it to Justice Scalia to observe sarcastically in a concurring opinion that the court’s resolution of the firefighter dispute “merely postpones the evil day on which the court will have to confront the question” of the Civil Rights Act’s constitutionality.

Finding the law unconstitutional would be an astonishing step, all the more so because the Civil Rights Act’s current form is a Congressional response to a series of Supreme Court decisions in the late 1980’s that gave the law a reading that Congress thought was too narrow. The 1991 amendment codified a unanimous opinion of the Burger court, which in 1971 interpreted the original Civil Rights Act to bar employment policies that had a racially disparate impact, such as education requirements that were unrelated to the actual job.

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*Anytime you can sexx up honest judicial system analysis with a relevant modern analogy, my hat's off to ya.

Maybe more people will understand her thinking here, what that little public display, and the decision(s) behind it, could potentially point to... Change kept a-rollin' all term long?