![]() Supreme Court’s 6-3 decision to overturn Roe v. ![]() I don’t know whether this says more about such people's intelligence, or their honesty.Even though a draft opinion was leaked a few weeks ago, the U.S. Holder, even though it’s difficult to imagine a more grotesque abuse of judicial power than this abomination of a case. Yet many of them are celebrating Shelby County v. But it undoubtedly will trigger many arguments about the meaning of “judicial activism,” and “legislating from the bench.” Conservatives supposedly deplore these things. It’s impossible to predict, of course, what the Court’s rulings on marriage equality will be later today. A century later, Congress gets around to actually using this power, and the law it passes is a remarkable success.īut according to the Roberts Five, it’s unconstitutional for Congress to enforce legislation specifically mandated by the Constitution, because it has carried out its legislative responsibilities too well. So what we have here is a situation in which a war was fought in which 600,000 soldiers died, in large part so that the Constitution could be amended in such a way as to give Congress the power to force the slave states to treat black people like human beings. The 15th Amendment was enacted to give Congress the power to stop states from discriminating against racial minorities in regard to the right to vote. The Constitution was specifically amended in the most explicit possible terms to allow Congress to pass precisely this sort of law, for this precise purpose. What the Roberts Five actually held is that it’s not merely a bad idea, but actually irrational, for Congress (by a combined vote of 488 to 33) to reenact a law that is working so well, because since it is working so well it’s no longer necessary to have such a law.īut this decision is yet more outrageous. The decision in Shelby County is actually more nonsensical than even this outlandish hypothetical suggests. Is this not like arguing that a vaccine that protects against an illness is no longer necessary, because those who have been given the vaccine do not develop the illness? Surely no one could make such an obviously absurd argument. Some of you must suspect that I’m exaggerating. So the former states should be able to lower their legal drinking ages, since the problem the legislation addressed has been solved. It’s “unfair,” you see, to “discriminate” against the nine states that had lower legal drinking ages, because those states now have roughly the same rate of alcohol-related traffic deaths involving teenagers as the states that voluntarily enacted higher legal drinking ages. Yet it is no longer constitutional, because the law has worked so well! Its reasoning: The law was constitutional when it was passed, because experience has shown that requiring a higher drinking age was a rational legislative response to the problem of alcohol-related deaths involving teenaged drivers. ![]() Congress therefore renews the law on several occasions, and on each occasion the Supreme Court assures Congress, in decisions dealing with challenges to the law, that the law is perfectly constitutional.īut then something remarkable happens: Suddenly the Supreme Court announces that the law is unconstitutional after all. Alcohol-related traffic deaths involving teenagers plunge in all nine of the affected states. Now imagine this hypothetical legislation is remarkably successful. ![]() Not surprisingly, the nine states in which the drinking age is 18 would all fall into this category. Now suppose Congress passed a statute requiring any state that had an unusually high percentage of traffic deaths involving teenage drunk drivers to raise its legal drinking age to 21. Suppose further that alcohol-related traffic deaths involving teenage drivers were three times higher in the states with the lower drinking age. Suppose, hypothetically speaking, that in 1965 the drinking age in 41 states had been 21, while in nine states it was 18. The easiest way to explain Justice Roberts’ opinion to non-lawyers is by analogy. Leaving aside the practical effects of the Court’s holding, which are likely to be awful (Texas has already won the race for “first state to enact a change to its voting laws that wouldn’t have been approved by the federal government if the Voting Rights Act could still be enforced”), the opinion is a travesty as a matter of basic legal reasoning. Holder, is one of the very worst Supreme Court decisions of all time. The voting rights ruling it issued yesterday, Shelby County v. After yesterday’s performance by the Court, we can no longer be surprised by historically bad jurisprudence. Later this morning, the Supreme Court is expected to hand down its decisions in the key marriage equality cases. Update: Sure enough, four of the Roberts Five cast dissenting votes in the DOMA case that are completely impossible to reconcile with the legal principles they asserted in Shelby County.
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