Tuesday, June 18, 2013

A Nice Lesson From the Court



SO I yap about a lotta stuff (well, I used to yap about stuff, before entering moribund blog phase), and because I lack the discipline to actually write, my yapping is at best  momentary pique.

Nothing changes here:  it's yap all the way.

But I found yesterday's Supreme Court decision on an Arizona law very instructive.  Not substantively, and only in passing as an instructive vehicle to understand what the Court usually does.

But instructive in how reporting has so grossly distorted our view of what the Supreme Court is usually doing or deciding.

Let me write two headlines, or imagine yourself hearing on your radio the following ledes:

(1)

The Supreme Court prohibited Arizona from requiring documentation of citizenship for voting in Congressional elections


vs

(2)

The Supreme Court held that Congress preempted Arizona's ability to require documentation of citizenship for voting in Congressional elections.
The distinction is small, but [methinks] meaningful.


Under that first headline, seven justices decided that . . . . something [the Constitution, presumably?] bars Arizona from requiring proof of citizenship in elections.

Under the second, seven justices decided that Congress had the power to restrict, and had in fact restricted, Arizona from requiring proof of citizenship.

Whether a state can or should require documentation of citizenship[ is a pretty controversial, heated issue:  is it being used to prevent voter fraud, or to limit access to the ballot box?  To let seven [well, five] people decide that, and try to tell you where the limitation is found in the Constitution or elsewhere, grants the Court a fuckuva lotta power.

But whether the federal government can establish rules for federal elections, or whether a federal law can trump a state law in Constitutionally permissible areas, are not controversial issues.  They're settled and taken for granted.   So in this case, letting two-hundert and something Congressmen (and fifty-something senators, and a president) decide that a federal form without additional docuimentation is good enough is a bit more representative.

And aggrieved folk who want to change the rule and require more documentation can vote for a U.S. representative who will try to change the law, and likewise can contribute to the campaigns of presidential candidates and senatorial candidates who favor requiring more documentation.  As opposed to . . . what?  Bitching about the Supreme Court, or trying to impeach a justice?




But I didn't hear the second headline read on NPR or elsewhere, and I didn't see the headline in any of the newspapers that I read.  Which I lament -- it really ain't that hard to get it right.

And it might do a tiny bit o' good at maintaining whatever respect remains for the Court.

Now sometimes the justices will really just decide what they want and dress it up, or Congress will have punted and left it to the Court to decide what Congress intended.  I don't mean to suggest that the Court isn't involved in setting policy, as lamentable as that may be.  But it strikes me as really quite possible that Scalia or Kennedy or Roberts-- or even somebody else in the majority--might think that documentation of citizenship would be a really good idea.  While also deciding that the Supremacy Clause in the Constitution gives the federal government the power to decide, and takes it away from the states when the federal government has spoken.


I'll go back in my hole now, and I'll get up a photo of some zebras cavorting, or some French actresses' tits, as soon as I can. . . .

4 comments:

Mythical Monkey said...

Well, and not only did the Supreme Court do what the second headline suggests, but also said Arizona could back to Congress or the Federal Election Commission or any number of federal entities and ask them to change the form and allowed them the possibility of suing if the form isn't changed. Indeed, some state made such a request in 2005, the fed refused but the state declined to pursue it further.

It's not nearly as stark a ruling as the press would have you believe (or seem to believe -- I'll give them the benefit of the doubt, although I don't know why). Indeed, it was fairly predictable given the Court's decision in McCullough v. Maryland some two hundred years ago.

mister muleboy said...


It's not nearly as stark a ruling as the press would have you believe (or seem to believe -- I'll give them the benefit of the doubt, although I don't know why). Indeed, it was fairly predictable given the Court's decision in McCullough v. Maryland some two hundred years ago


Exactly. And my point is that so many of the "The Court struck down" or "the Court allowed" are really "Congress didn't provide" or "Congress has exercised Constitutional authority to" decisions. WHich is, in a representative democratic republic such as ours, likely a good thing.

Unless you and I were on the court. In which case, it's rulerball, redheads, and rodeos for all. . . !

Mythical Monkey said...

Unless you and I were on the court. In which case, it's rulerball, redheads, and rodeos for all. . . !

Best argument for our nomination to the bench ever!

(Also the only one ...)

Who Am Us Anyway? said...

Your point is of course well taken but in the copy editor's defense, if the Court didn't have a certain grasping … proclivity for short circuiting the democratic process -- i'm looking at YOU justice blackmun and i'm looking at YOU justice scalia -- she would have been less likely to have been confused about how the Court (in this instance) was just applying the preemption doctrine. Less defensible are the stories I still routinely see that mistake a denial of cert for a ruling on the merits. Certiorari isn't all that hard a concept so there's no reason for major newspapers to fail to grasp it, but they do, time after time.