Thursday, July 01, 2021

What Was/Is at Stake in Brnovich?

 by Michael C. Dorf

I don't usually post "hot takes" on Supreme Court opinions, preferring to spend at least several hours and often several days to digest them before blogging about them. I'll depart from that practice today, aware of the risk that I'll therefore make more mistakes than usual. So herewith are my hot takes on Brnovich v. DNC:

(1) The not-just-ideological-but-partisan division in this case (and in the other case handed down today, Americans for Prosperity Foundation v. Bonta) will substantially undercut the narrative that had been emerging of a Court that was taking pains to forge cross-ideological alliances. For example, this NY Times article a week and a half ago was headlined "The Supreme Court’s Newest Justices Produce Some Unexpected Results." The sub-headline was "In the term so far, including two major decisions on Thursday, the court’s expanded conservative majority is fractured and its liberals are often on the winning side." But Adam Liptak, who wrote the piece, wisely hedged (and was nice enough to quote me). The story concluded: 

That may change in the next two weeks, as the court issues decisions in the remaining 15 cases of this term. In any event, said Michael C. Dorf, a law professor at Cornell, this term’s coalitions may be fragile.

“More than in most recent terms, Chief Justice Roberts was able to present a credible picture of a nonpartisan court, with Justices Breyer, Kagan, Kavanaugh and Barrett in particular seeming to go out of their way to forge centrist alliances,” Professor Dorf said. “However, the justices appear to have reached a truce rather than a lasting peace. With high-profile abortion and gun control cases already on the docket for next term, ideological disagreements will likely re-emerge sooner rather than later.”

I ought to have mentioned voting rights too. And I was too optimistic in suggesting that the era of good feelings would last into next Term. It's over already.

(2) That said, Brnovich might be dismissed as small potatoes. After all, even the Biden Justice Department argued (in a letter that Justice Alito's majority opinion cites in footnote 8 on page 13 of the majority opinion) that the two challenged Arizona voting laws--one that limits who can collect a mail-in ballot and the other invalidating an election-day ballot cast in the wrong district--did not violate Section 2 of the Voting Rights Act. The fact that all of the Democratic appointees disagreed shows that the administration's view is controversial, but even if one thinks that the administration and the Brnovich majority are wrong about the outcome, minority and Democratic voters will still be able to win elections in Arizona notwithstanding these restrictions.

(3) Yet seeing the case as only about the particular Arizona rules takes a particular kind of myopia. Justice Alito says that Justice Kagan's dissent goes on at length about issues the Court doesn't decide. He also says that the Court declines to adopt a test for a VRA Sec. 2 violation, but it's hard to take that claim seriously. After all, Justice Alito and the majority specifically reject disparate impact as such, preferring instead what he calls a totality-of-the-circumstances test, which he equates--at least for purposes of this case--with a five-factor test. Even if the majority's test is more faithful to the VRA than the dissent's, the notion that it's not a test, that the Court has not decided much, seems plainly wrong.

(4) Indeed, it's impossible to miss what the majority is really after--a construction of the VRA that will allow it in future cases to reject challenges to practices that do have a more substantial disparate impact. Can you guess what those might involve? You don't have to, because Justice Alito and the other Republican appointees lay it out for us in critiquing Justice Kagan's test, which, he says:

would have the potential to invalidate just about any voting rule a State adopts. Take the example of a State’s interest in preventing voting fraud. Even if a State could point to a history of serious voting fraud within its own borders, the dissent would apparently strike down a rule designed to prevent fraud unless the State could demonstrate an inability to combat voting fraud in any other way, such as by hiring more investigators and prosecutors, prioritizing voting fraud investigations, and heightening criminal penalties. Nothing about equal openness and equal opportunity dictates such a high bar for States to pursue their legitimate interests.

So there it is: laws having a clear and substantial disparate impact on minority (read Democratic) voters can be justified by the state's interest in combating voter fraud, even if there are alternative means available that do not have the disparate impact. Sure, Justice Alito qualifies the statement with the "Even if . . ." language, but we know which judges will be making the judgment whether a state has pointed to "a history of serious voting fraud."

(5) Justice Kagan's dissent is most powerful in painting the majority opinion as tone-deaf in the same way as the Court's disastrous opinion in Shelby County v. Holder gutting Sections 4 and 5 of the VRA. Here, as there, the Court treats race discrimination in voting as a thing of the past. But whereas the Shelby County Court might have invoked the excuse that it thought things had improved, that excuse is not available now, given how so many states reacted to the freedom that Shelby County gave them to dilute the strength of minority voters.

Bottom Line: The particular outcome in Arizona is not especially important, but at a time when we will likely need the federal courts to stand up to the Republican Party's nationwide effort to undercut democracy, Brnovich shows that the Republican-packed Supreme Court is more likely to abet that effort.  


Michael A Livingston said...

I think Roberts is playing a long game, conceding cases he doesn’t really care about and holding firm on things he sees as more central. I think that anybody who doesn’t recognize this is being very, very naive. I would be interested to meet this Michael C. Dorf, referred to by Adam Liptak, who seems to have a rather good take on judicial decisions—does he also have an opinion on Bill Cosby?

Joe said...

Kagan's dissent is ANGRY.

Sotomayor dissents in the other case for the liberals but she sounds downright temperate (though challenging Roberts on the law repeatedly) compared to Kagan.

Kagan's dissent is also a cry from the heart on the important of voting rights, the VRA particularly, and how personally painful it is that the majority commits "violence" (to cite the last post on this blog) against it.

And, the dissent is brutal on how wrong the majority is on the law.

Congress needs to pass voting rights reform. The majority in both cases is a warning to them that Barrett Court (with three tainted judges that are not just problematic -- contra to one or more contributors at yesterday's session of the presidential Supreme Court commission meeting -- because of WHAT they decide, but HOW they got there) will look at the legislation with a critical eye.

But, the Supreme Court can only do so much to attack. And, if they go too far, a future Congress has means -- if necessary ("a break glass moment" to use a metaphor used yesterday) to do more. Congress too can play a long game & it will be around when Roberts retires even if that won't come for fifteen or so years.

Asher Steinberg said...

I think that, as you suggest, Alito is palpably hostile to Congress's choice to adopt, in Section 2, some (to be fair to him, extremely obscure) disparate-impact standard for regulating state election law. Now, I happen to think that hostility is robustly defensible and that there may well be more to be said for a decision striking down a nationwide disparate-impact districting regime than Shelby County's invalidation of a scheme targeted at at least historically discrimination-prone jurisdictions, and maybe even more to be said for it than cases like Gratz or Adarand. One can go very far along with thinking it's constitutional or even a good idea to seek to achieve some rough racial proportionality in college admissions or contracting without thinking it's alright to roughly mandate, by way of artificial gerrymander, racial proportionality in the House of Representatives. However, an opinion that was more above-board about its hostility and couched what it was doing in terms of (preferably traditional, i.e., Roberts in NFIB-style) constitutional avoidance would be preferable to this sort of planned-statutory-obsolescence-in-the-name-of-textualism opinion. Preferable, for one thing, from the perspective of seeking to persuade a skeptical audience. Much the same could be said of the Court's opinion in Jones v. Mississippi in comparison to Thomas's admirably honest opinion in that case, which, rather than making dubious claims about Montgomery, lays bare Montgomery's to-this-day shocking dishonesty about Miller.