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Saturday, July 13, 2013

Problems with Shelby County

After my post defending aspects of the Court's opinion in Shelby County v. Holder, I thought that before I left I should add a few words about some aspects of the opinion I find more problematic.

1:  Bail-in and bail-out.  Solicitor General Verilli's closing point at oral argument was:

The facial challenge can't succeed ... because there is a tailoring mechanism in the statute. And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge.

Given that the Court relies so heavily on the irrationality of the coverage formula, it would have been better for it to directly address the government's arguments that the bail-in and bail-out portions of the statute cured any problems with the formula.

Ultimately, this is more of a point about craft than substance, since I do think the Court had good potential answers to this argument.  (The bail-out provision is so stringent that large jurisdictions can't get out unless the Department of Justice and the courts refuse to apply the statute as written, and in any event is sufficiently strict that it does little to cure any overbreadth in the coverage formula.  The bail-in provision can cure some underbreadth, but that does little about overbreadth; in any event the bail-in provision may yet get its day in the sun.)  But it would have been better to say something about it.

2:  The state-equality principle. The Court relied prominently on "the principle that all States enjoy equal sovereignty."  (Indeed, the words "equal" or "equality" appear nine times in the majority opinion, and always in reference to states, never to people or their voting power.)  There is reason to doubt, however, that the Constitution forbids discrimination between states.  More importantly, the Court does not explain what constitutional provision would forbid such discrimination.

Now one can tell a slightly complicated story to explain the Court's invocation of the state-equality principle here:  While there's no per se rule against interstate discrimination, the Constitution does require that enforcement legislation be "appropriate," and "appropriate" should be understood in light of McCulloch's gloss on the Necessary and Proper Clause, which should in turn be understood to incorporate various background principles of structure and rights; one such structural principle could be a principle of equal sovereignty.  Under this theory, unjustified unequal treatment of the states would heighten the scrutiny for necessity and propriety under the Reconstruction Amendments.

(The Court may be hinting at this theory when it says: "Coyle concerned the admission of new States, and Katzenbach rejected the notion that the [equality] principle operated as a bar on differential treatment outside that context.  At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.") 

But this is a pretty complicated story, it has several non-obvious moving parts, and one would expect an explanation along these lines.  To be sure, it is certainly true (as the Court notes) that the principle was endorsed in Northwest Austin with no criticism from the Shelby County dissenters. But as with bail-in and bail-out, it would have been better for the Court to explain what is going on here.

3:  This isn't really a point, just a final comment.  I think this was a hard case, and I think much of the criticism of the Court's opinion is misdirected.  Ultimately, though, I think the Court should probably have upheld the statute because of the burden of proof.  I mention this not because I have a great deal of confidence in this conclusion, but only because there's a strong temptation not to do so, since I think many of the criticisms of Shelby County are worse than the opinion they criticize.

Posted by Will Baude on July 13, 2013 at 01:49 PM in Constitutional thoughts | Permalink


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Kramartini and I went round on that at the VC, Adler's "Making Sense" post, so anyone who for some reason wanted to see his assertion refuted, could look there.

Posted by: Anderson | Jul 14, 2013 9:23:21 PM


In one sense that has to be correct. In another, that's ridiculous, because because reauthorization made it clear why they were using an old test (to avoid having to declare a particular jurisdiction racist now, which would have been politically infeasible). Interesting, this is the exact opposite of how a civil rights balancing test is supposed to work; the point of scrutiny is to protect the rights of the minority, not the majority. And Thomas looks particularly like an ass, as he's evidenced that even "uncommonly silly" laws should pass rational basis.

Posted by: Justin | Jul 14, 2013 8:23:14 PM

Shelby County is simply a case in which a statute fails the rational basis test.

The Court found that using a formula that makes reference to conditions 40+ years in the past is irrational.

Whatever one thinks of that proposition, it leaves open the possibility that states can be treated differently from one another based on a formula that the Court deems rational.

Posted by: Kramartini | Jul 14, 2013 7:27:20 PM

It is more than dubious that the cherry picked language of McCulloch was ever meant to stand for the proposition you say it does. Let's face it, Congress could have passed any damn law it wanted to, and Marshall would have found it necessary and proper to the exercise of some enumerated power. But that puts the cart before the horse anyway. Necessary and proper have nothing to do with it, in this case. Because Congress has explicit authority to pass the VRA under the enforcement clause of the fifteenth amendment. N and P analysis, of the usual kind or the strained variety plumped for here, is simply inapposite. As is any kind of "strict scrutiny" arising from background structures and so forth supposedly embodied in the McCulloch verbiage. Quite the contrary, an enforcement clause should be construed extra broadly, because of the felt necessity of enforcement, because it is being used to ameliorate an evil so gross as to warrant separate constitutional treatment, and a separate grant of congressional authority, and because there is simply nothing to balance against it. States rights in the Madisonian, Jeffersonian, or Jacksonian ante bellum versions were found wanting in this field. Hence the need for the Reconstruction amendments, and Reconstruction itself, and, oh yeah, the Civil War that prompted both of them. Moreover, it is not even "States rights" that is at issue here, but some new fangled notion, without support in the text of the Constitution or in SCOTUS precedent (and, no, the blather in Northwest Austin doesn't count) of "state equality." Sorry, but the Framers of the fifteenth amendment did not give a damn about "state equality." States which violated, in law but also in practice, the principle of racial equality when it came to voting faced special treatment. That is built into the amendment itself, and must be seen as superceding even long standing notions of federalism, never mind off the cuff nonsense dreamed up a century and a half later.

Posted by: philadelphialawyer | Jul 14, 2013 5:37:27 PM

The avoidance discussion was dicta. Ya don't reach a constitutional question if a statutory analysis resolves the case. And "don't reach" means you Do Not Reach It, which means whatever you say anyway about the question is dicta.

Posted by: Anderson | Jul 14, 2013 4:53:15 PM

So what if there was no concurrence in NAMUNDO? What's your point? That the dissenters really think this never heard before theory has merit? Or that because the Chief Justice pulled a fast one in a case that had no implications, he has successfully tricked the liberals into amending the constitution by supreme court dicta?

Posted by: Justin | Jul 14, 2013 4:10:30 PM


I think we probably agree on the bottom line: I don't think there's a rule that one must always write separately whenever one has objections. Accord Baude, 86 Ind. L. J. at 312-313. ("Under modern practice, judicial opinions are written by committee, and it is (understandably) considered a judicial virtue to be able to produce an opinion endorsed by a majority of the court.")

That said, if the problem with the principle is as great as the dissenters say it is, and if it is as unprecedented as the dissenters say it is, it is hardly a minor point.

As for dicta, I do not think the constitutional analysis in constitutional-avoidance opinions is dicta, but it is certainly more tangential than in a case that squarely decides the issue. And Shelby County certainly makes much of the principle, which is why I picked it out in this post.

Posted by: William Baude | Jul 14, 2013 3:05:26 AM

Hi Will. You mention that the equality-of-the-states principle "was endorsed in Northwest Austin with no criticism from the Shelby County dissenters" (and link to Linda Greenhouse's essay critical of the compromise the liberal justices made).

But I do think it is worth noting that NAMUDNO's equal sovereignty language, much relied upon by Chief Justice Roberts in Shelby County, was dicta; it was a few sentences in a much larger discussion that was itself dicta. I think it's fair to say that the Shelby County opinion's discussion of this passage in NAMUDNO was considerably longer, and considerably closer to being a holding, than the passage in NAMUDNO itself.

Do we really want the rule to be that if you object to anything in a majority opinion, any language at all, you have to write separately?

Posted by: Joey Fishkin | Jul 14, 2013 12:34:48 AM

"much of the criticism of the Court's opinion is misdirected"

But, even you think the ruling probably was wrong not to uphold the statute, after being much more sympathetic about the opinion.

This leads me to conclude that the criticism wasn't really misdirected. It might have been applied a tad thick & I don't agree with any criticism based on some sentiment the majority are just partisan hacks.

But, if even a sympathetic reading leads to your conclusion, especially given the importance of the legislation and so forth, "misdirected" is misdirected itself.

Posted by: Jonathan | Jul 13, 2013 4:33:04 PM

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