The coming month will be a defining one for the Roberts Court. Over the next four weeks, the Supreme Court will decide high profile cases about affirmative action (Fisher v. University of Texas), the constitutionality of the Voting Rights Act (Shelby County v. Holder), and marriage equality (Hollingsworth v. Perry and United States v.
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Congresswoman Michele Bachmann has committed many factual gaffes over the years, as others have recounted upon news of her forthcoming retirement. Some of Rep.
Sometime before the end of June, the Supreme Court will decide Shelby County v. Holder, a constitutional challenge to the preclearance provision of the Voting Rights Act, one of the Act’s most important guarantees against racial discrimination in voting. Shelby County has argued that the Act is unnecessary and outdated and has urged the Supreme Court to hold it unconstitutional on that basis. With the Court’s decision looming, a number of recent commentators have suggested that, in light of recent voter turnout data, the Voting Rights Act is no longer needed.
This past Monday I posted a New Republic article on a lawsuit recently filed by Obamacare opponents in the United States District Court for the District of Columbia, who construe the Affordable Care Act to bar ACA tax credit subsidies to purchasers of individual health insurance policies on state exchanges managed by the federal government (as distinguished from exchanges managed by state governments). My piece spotlighted the “upside-down preposterousness” of the opponents’ core contention – that the Congress that enacted the ACA “intended” to “subvert the ACA’s central purpose and stiff the very population the law was enacted to benefit.” Reason.com, a leading libertarian blog, promptly published a critique of my piece by Peter Suderman. So this post briefly answers Suderman’s analysis, as well as a similarly critical email response (enclosing House Ways & Means testimony) I received from Vanderbilt scholar (and law school classmate and friend) James Blumstein, a prominent academic foe of the ACA.
Right now, there are six vacant seats on the very busy federal District Courts in Texas, with no nominee pending to fill any of those vacancies, four of which are considered to be judicial emergencies. One of those six vacancies dates back to November 2008, and two of them to 2011. Last week, during a meeting of the Senate Judiciary Committee, Senator John Cornyn (R-TX) sought to blame President Obama for the lack of nominees, and to absolve himself (and his Republican colleagues) of any responsibility for this dismal situation.
According to Cornyn, “The president’s got to nominate somebody before the Senate can act on it.” That simplistic answer was met by pushback from Senator Sheldon Whitehouse (D-RI) and Committee Chairman Patrick Leahy (D-VT), who reminded Senator Cornyn that it is the longstanding practice for District Court nominees to be recommended to the Administration by home-state Senators, and that the Judiciary Committee will not even proceed to consider a nominee if one or both of those Senators has not consented to such consideration by returning the so-called “blue slip.”
At Bench Memos, Roger Clegg argues that the information recently released by the Census Bureau concerning voter turnout in the 2012 elections provides further evidence that the Voting Rights Act’s preclearance requirement – in many ways the heart and soul of the Act – is unconstitutional and should be struck down by the Supreme Court in Shelby County v. Holder. Clegg relies heavily on the fact that African American turnout was highest in some of the states covered or partially covered by the Voting Rights Act, including Mississippi and North Carolina, and that some non-covered jurisdictions had lower African American turnout. Clegg, of course, never even mentions the Constitution, which explicitly gives to Congress the power to enact prophylactic legislation, like the Voting Rights Act, to prevent and deter racial discrimination in voting. Even on its own terms, Clegg’s argument does not withstand analysis.
CAC Board Member Prof. Akhil Reed Amar helped kick off the new four-part series “Constitution USA” on PBS Tuesday night. Described by host Peter Sagal as “the Yoda of constitutional law,” Amar is featured in “A More Perfect Union,” the episode of the series focusing on federalism. The full episode may be viewed on PBS’s website.
In a report issued by the Congressional Research Service on May 2, 2013 analyzing and comparing the Senate fate of President Obama’s lower court nominees with those of all Presidents since Ronald Reagan (during their first terms), CRS confirmed what Constitutional Accountability Center has been saying