The Left Has It Way: Changing the Constitution, Predicting the Supreme Court’s Role in the 2016 United States Supreme Court Case

Chief Justice John Roberts is looking forward to the start of the Supreme Court’s new term on Monday, especially now that the public will be able to attend oral arguments in person and the metal barricades erected to ward off protestors on the plaza have been removed.

Others are wondering what exactly “normal” means anymore, after last term when the court’s reversal of near 50-year-old precedent changed the landscape of women’s reproductive health, it cut back on the power of federal agencies, it cleared the way for new Second Amendment challenges and it inserted itself into the upcoming midterm elections.

Critics say the court is unrecognizable because an aggressive conservative majority is moving the country backwards and, in some instances, erasing long-held rights.

He said the abortion case was not acting in a normal, appropriate way, which would have required following precedent and taking into account that people had ordered their lives around it for a half century.

Conservatives are happy that Donald Trump was able to achieve his goal of changing the judiciary. They think that the right side of the bench is correcting errors of the past, returning the court’s focus to the text and history of the founding era and interpreting the Constitution in accordance with the original public meaning.

They expect to make new progress as conservatives work towards a so-called color blind society, and diminish the administrative state in a new normal.

The left “had its way for a very, very long time,” John Malcolm of the conservative Heritage Foundation said on Wednesday – dating back to the Warren Court era known for its progressive rulings. He says liberals are reacting by questioning the legitimacy of the court.

Thomas and Alito were both appointed to the Supreme Court by three different Republican presidents over the course of three decades. In recent election disputes, they have made plain a shared distrust of state court judges.

The current docket of the court is described as a nice bunch of cases by Roberts last month. A closer examination reveals that race is a common thread in many of the most anticipated disputes.

In the North Carolina case a lower court upheld UNC’s use of race calling it “narrowly tailored,” while emphasizing that race is considered simply as a “plus” factor. The lower court also said that UNC did not have a viable race-neutral alternative that would allow it to achieve the educational benefits of diversity.

Justice Elena Kagan leapt in first to criticize the Alabama effort to scale back Section 2’s protections, calling the Voting Rights Act “one of the great achievements of American democracy, to achieve equal political opportunities regardless of race, to ensure that African Americans could have as much political power as White Americans could. That is a pretty significant deal.

Such a requirement, Marshall argued, puts the state at “loggerheads” with the Constitution because the state would have to “prioritize race always in redistricting.” The state would have to sort Alabamians based on their skin colors for the challengers to succeed.

Challengers to the current map – including registered voters, voting rights groups – urged the Supreme Court to uphold the lower court opinion and say that the “mere consideration of race” to remedy a Section 2 violation does not inevitably lead to equal protection concerns under the Constitution.

If the state legislature had been very generous to minority voters and the Supreme Court said this was against the constitution of the state, would you be making the same argument? Thomas asked.

“As uncomfortable as the political reality in Alabama might be – and as strong the temptation to shut our eyes to the tenacity of racial discrimination in voting – the courts must not blink,” attorney Abha Khanna, representing Black voters argued in court papers.

Anti-Discrimination Law in Colorado: Addressing a Case of Same-Sex Marriage, a Business Owner, and the Legislator

Khanna said that plans drawn up by experts for her side show that a second district could be drawn up that complies with traditional redistricting principles that take into consideration compactness, population equality, contiguity, and respect for communities of interest where race was not the predominant factor.

According to Janai Nelson of NAACP Legal Defense Fund, ignoring race is a cause of inequalities and disadvantages in and out of education. “It also denies all Americans the ability to leverage our greatest strength as a country – our diversity.”

According to Consovoy,Grutter was wrong the day it was decided because it deviated from the Constitution’s original meaning, has no true defenders, and has eroded over time.

He said that both universities gave huge racial preferences to African Americans and Hispanics.

When Alito predicted likely success for the legislators’ appeal, he cited the Elections Clause at the heart of this case, which dictates that rules governing the “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof.”

The case was brought by a baker because he didn’t want to make cake for same sex marriages. The Supreme Court ruled in favor of the baker, but the ruling was tied specifically to the facts of that particular case and the justices left a decision concerning whether business in general could decline services to same sex couples nationwide for another day.

The founder of a Colorado company called 303 Creative aims to create websites designs for weddings. Critically, however, she does not want to work with same-sex couples because she has religious objections to same-sex marriage. Smith says she cannot post her explanation of why shewon’t create websites because the state considers it illegal.

Weiser said that customers don’t look, love, or worship the same way as other people, but that they all expect to be treated the same. He said that the law does not target Smith’s message and does not aim to suppress any message that a company might express.

The state of Colorado has an Anti-Discrimination Act, which is defended by the Attorney General in court papers.

He said businesses are free to decide what services to offer. “The Act requires only that the Company sell whatever product or service it offers to all regardless of its customers protected characteristics.”

Defending Section 2 of the Voting Rights Act: A Topsy-turvy, Color-blind, and Racially Discriminatory Sentiment Law

Congress amended the law after the Supreme Court ruled that voting rights advocates had to prove intentional discrimination in order to invalidate an electoral system. Discriminatory result has been the standard since then, upheld by the Supreme Court and enforced by the lower courts.

He notes that the arguments range from narrow ones about how to interpret the 1982 amendments to the Voting Right Act to more extreme ones.

In an extreme, Pildes says that there is a theory that the Voting Rights Act does not apply to legislative redistricting plans since they have been historically applied to by the court. The act is unconstitutional if it does apply the way the lower court did, he says.

Countering that argument, Black voters contend that the state’s argument boils down to a topsy-turvy, inside-out proposition: that any effort to eradicate racial discrimination is unconstitutional because it has to emphasize considerations of race.

Three justices from the Supreme Court want to change the perception of America being colorblind from the conservatives who dominate the bench.

After the court’s 2013 decision in Shelby County v. Holder, which gutted another key section of the act, Section 2 remains as one of the last legs of the civil rights-era law. The court’s ruling on another case, Merrill v. Milligan, is expected by the end of the current term in June, so many court watchers are keeping an eye on Section 2.

They tried to ensure that freedmen were treated equally in society during the Reconstruction period, despite the fact that they had been discriminated against. Is that correct? That is not a race neutral or race blind idea, she said.

Justice Sonia Sotomayor, the court’s first Hispanic justice, stressed that Section 2 was intended to ensure that “a particular racial minority … can equally participate.”

As a group, the high court’s conservatives largely held their fire. Justice Neil Gorsuch asked not a single question. Justice Clarence Thomas posed two relatively modest queries to Alabama Solicitor General Edmund LaCour and no questions to the lawyers challenging the Alabama plan, Deuel Ross and Abha Khanna, or to US Solicitor General Elizabeth Prelogar, also asking the justices to affirm the lower court.

Does the Fourteenth Amendment Give a State Equal Protection? Elena Kagan, John Roberts, and Thomas Rehnquist

The Fourteenth Amendment guarantees Equal Protection and Thomas argues that it is violated by the use of racial remedies.

Jackson countered that notion. “I don’t see that Congress is requiring race neutrality,” she said, observing that the law was intended to ensure that no “particular class of citizens” has “less opportunity” than another. She said that it seems like Congress is authorizing the consideration of race.

Alito said there was a limit on state court action, which was the worst thing we could do. We have a standard but it doesn’t mean anything.

Elena Kagan said she wanted to think about consequences since it is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that’s a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting.”

Kagan added: “It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.”

It seemed the six justices on the right, including Chief Justice John Roberts, were inclined to set some new, as yet unclear, boundaries on state judges in election controversies.

Their sentiment emerged in cases two years ago from Pennsylvania and Wisconsin, as well as in preliminary action in the pending North Carolina case earlier this year. At times, they were joined by the man who was in charge of it.

The North Carolina legislature would likely win once the justices heard it and granted them permission to do so, wrote Alito last March. Thomas and Gorsuch signed onto his opinion.

As the high court cut off recounts to determine the state’s Electoral College votes back in 2000, it said county recount standards varied too widely to meet guarantees of equal protection and due process.

It is up to each State to decide which branch, component, and officer of the state government should exercise that power as States can allocate state power as they please. The Elections Clause doesn’t say what that is, wrote Alito. “Its language specifies a particular organ of a state government, and we must take that language seriously.”

One of the two justices who signed onto Rehnquist’s opinion was Antonin Scalia, and he is still on the 2000 bench.

He did not back off of his views in the case, despite his own personal pleas from NealKatyal, one of the lawyers who stood at the lectern to defend the North Carolina court action.

“Justice Thomas, if I may, in two decades of arguing before you,” Katyal said, “I have waited for this precise case because it speaks to your method of interpretation, which is history.”

State court judges would be more inclined to accept Thomas’ alternative view of constitutional history.

Thomas also pointed to the political backdrop of the case, which began with the spurning of the Republican legislature’s congressional redistricting map. Thomas asked Katyal if he would be defending the North Carolina court if it had taken a different tack.

Last session, he authored the New York State Rifle & Pistol Association v. Bruen decision, based on a historical reading of the Second Amendment. The court declared for the first time a right to carry a weapon outside of the home.

Joined by five other justices on the right wing, Thomas said that gun control measures should be measured by the history of the nation. He wrote that courts need to assess if modern firearms regulations are in keeping with the Second Amendment text and historical understanding.

Lawyer David Thompson, representing members of the North Carolina legislature before the justices on Wednesday, invoked Bruen for historical view of legislative power.

“We think the way to think about this is consistent with the court’s opinion in Bruen last term, where it looked very focused on the time of the founding,” Thompson said.

At the outset of his arguments, Thompson told the justices, “As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised. Federal law alone makes it illegal for state Legislatures to perform the tasks assigned by the federal Constitution.

Alito addressed larger concerns raised by Kagan and legal scholars who oppose the independent state legislature approach, as his questions reflected that sentiment.

“Many state supreme courts are elected,” Alito noted as he questioned Katyal. Some states permit partisan elections. So there’s been a lot of talk about the impact of this decision on democracy. Do you think it will help democracy to transfer the politics about districting from the legislature to the supreme courts?

In the summer of 2021, Gorsuch — the first Supreme Court appointee by former President Donald Trump — tacked a single-paragraph concurring opinion onto a major court ruling to “flag one thing.”

No one had raised a question before the court about who had the right to try to enforce that section of the landmark law, according to the man who wanted to flag it.

The argument that private people don’t have the right to sue under Section 2 is an example of what is possible if we could close off opportunity for voting rights challenges under the court.

“It keeps me up at night,” says Doug Spencer, an associate professor of law at the University of Colorado, who tracks voting rights lawsuits and is concerned about the argument not to allow private individuals to sue under Section 2.

Depending on how the courts rule in the Arkansas case, it could also mean different possibilities for state and local governments that are “hostile to racial minorities,” Kang says. There will be a new world of possibilities for the Republicans to take advantage of, if the government wants to cut back minority voting opportunities. It would be hard to challenge a lot of what they do.

The words of the Voting Rights Act do not include any explicit mention of private individuals when describing who enforces Section 2. The text and structure suggest that the authority to enforce is with the Attorney General of the United States.

The answer to the question is no. Only the Attorney General of the United States can bring a case like this one,” said Rudofsky’s ruling, which has been appealed to the 8th U.S. Circuit Court of Appeals. A ruling by a three-judge panel is expected soon.

Everyone understands that Section 2 of the Voting Rights Act states that people who have been violated can bring a case, and that’s the reason why courts have never felt compelled to say that.

Before Congress amended the Voting Rights Act with bipartisan support and then-President Ronald Reagan’s sign-off in 1982, committees on Capitol Hill issued reports that spelled out lawmakers’ intentions.

The report said citizens have a private cause of action to enforce their rights under Section 2. In the months after, the report said that the private right of action under Section 2 was clearly intended by Congress.

Still, Rudofsky’s ruling dismissed the lawmakers’ statements, writing in a footnote that congressional committee “reports—which are neither passed by Congress nor signed by the President—are not law.”

This is a way of interpreting the laws. If the law says that private individuals can seek damages if their voting rights have been violated, then they can. The argument conflicts with reality.

Section 2 cases in the United States aren’t the sole enforcement of the constitutional equivalence between Congress and the U.S. Attorney General

After ruling that only the U.S. attorney general, who heads the Justice Department, could bring the Arkansas case, Rudofsky gave the federal government five days to pick up the lawsuit before the judge formally threw out the case.

In the court filing, the US government said that private individuals have the right to go after the bad guys under Section 2. The department filed a statement a few weeks before Rudofsky ruled on it.

The DOJ said limited federal resources reinforce the need for a private cause of action.

The main challenge of the “sheer volume of jurisdiction” is also addressed by Pam Karlan, who was the principal deputy assistant attorney general before stepping down last year.

State, counties, school boards and water districts are included in this list. I mean, there are just so many different governmental bodies that are subject to Section 2 that the idea that you’d have one body in the Justice Department as the sole enforcement mechanism makes no sense at all,” says Karlan, who declined to comment on why the DOJ decided not to take on the Arkansas case.

A change in presidential administrations can also change the priority level of Section 2 cases at the Justice Department, warns Spencer, the associate law professor at the University of Colorado.

If you rely on a political institution to safeguard your right to vote, you could have years that are not enforced in the courts, even if Congress created that right.

Even the most conservative legal thinker weren’t thinking that the federal courts would buy the argument until that concurring opinion questioned that right.