June 25, 2013

Justice Ginsburg says the "equal sovereignty" principle "is capable of much mischief" and brainstorms ideas for vexatious litigation.

In her dissenting opinion in Shelby County v. Holder (PDF), she frets about all the federal laws that treat states differently from each other and could be subjected to attacks based on the majority's "fundamental principle of equal sovereignty" among the states:
See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State con­ducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this sub­section after December 22, 1987”). 
It seems to me that the "equal sovereignty" principle is an important structural safeguard in the federal legislative process, protecting us from the democratic dysfunctions of things like the "Cornhusker Kickback." This is exactly the sort of thing that ought to shake judges out of the usual deference to Congress. 

48 comments:

Sofa King said...

But it gets in the way of the Central Planners.

AprilApple said...

Still trying to figure out how/why Dred Pirate Justice Roberts didn't save us from the economic injustice and the democratic dysfunction of the ACA?

bpm4532 said...

Obama is said to be "deeply disappointed" in the decision. As he equates himself with Lincoln and believes nothing has really changed since 1861, feels it is necessary to issue the Emancipation Proclamation and deliver it on TV by teleprompter to spark a new great struggle.

Perhaps someday, a black man will become president...and act like one.

Skyler said...

Wasn't the Great Compromise all about ensuring that big states and little states were represented by the House and the Senate so that little states had equal say in the Senate, but the larger populations had an advantage in the House? Should Mrs. Ginsburg be a bit more savvy about our federal government than that?

traditionalguy said...

Equal Protection has always meant equally bad treatment. That is the safeguard; if you do it to me then you have to do it to yourself too.

The Under age 18-21 folks wish for such a Nirvanna.

The exceptions of States such as Nevada or Alaska is rationalized because they are more Federally owned colonies than States.

Which is the other 800 lb gorilla in the room... Federally owned lands the size of Half of New Englandthat should be given away or sold at auction.

SomeoneHasToSayIt said...

It seems to me that the "equal sovereignty" principle is an important structural safeguard in the federal legislative process

ya think?

Nathan Alexander said...

To Ginsberg, like most liberals, democratic dysfunctions like the Cornhusker Kickback are a feature, not a bug.

You know housing subdivisions have pretty names like "Sunny Glade" and "Rolling Brook"?

They are trying to give the feeling of something they either completely lack, or (at worst) destroyed in order to create the street.

That's how the Democratic Party got its name.

t-man said...

I favor eliminating all of the various doctrines of deference and/or presumptions that the Supreme Court employs in favor of the federal government, including its agencies, when deciding cases.

Toby said...

The court didn't say pre-clearance is unconstitutional. It said that there needs to be a better formula for determining which areas are subjected to pre-clearance. Seems like Ginsburg is knocking down a strawman. Given that this is a very sensitive topic, it's pretty gross of her to do this.

David said...

"Frets?"

Is that sexist?

Could be if I wrote it, at least to some people.

It's so hard to know what is right.



gerry said...

Would it be sexist to say that Ginsberg is hot?

edutcher said...

Equal Justice Under Law is so un-Democrat.

gerry said...

Ohhhh, Ginsburg.

Never mind.

Simon said...

Judges shouldn't be deferring to Congress anyway. The presumption of Constitutionality is rooted in the fiction that members of Congress swear an oath to the Constitution, and thus presumably weigh legislation against the Constitution. Thus, the considered judgment of the people's representatives on the question, combined with the demands of institutional comity, demands that the court give some deference to their judgment.

In the world of legal fictions, truly, some are the Iliad, and others are Fifty Shades of Gray.

The legal process answer is that deference is due to Congress only when viewed in terms of institutional competence. We should defer to Congress in the same way that we defer to trial courts: When Congress makes a political decision, we defer to its judgment, unless it's out of bounds. And it is the prerogative of the reviewer, not the reviewee, to settle where those bounds lie.

cubanbob said...

Skimming Ginsburg's dissent is reason enough to never vote for a Democrat for Senate. To her it's ways 1965. Her dormancy example is beyond parody. It's akin to saying now that the firemen have put out the fire lets keep them on site I definitely incase another fire should occur. Then she goes on about group voting rights. Her mindset is such that it escapes her that our rights are individual rights not collective group rights. She would be a great Supreme Court justice in a country whose foundational law supports group rights. But just not here.

Geoff Matthews said...

There is a role for Federal lands. Military bases, for instance. I think a valid argument could be made for many of the Federal Parks as well (though I think that these have been abused of late).
What aught to be the case, though, is that the Feds should pay the states a fee for land that they've federalized. This is the rationale for the disparate amount of Federal dollars going to some western states. Some of them are 50%+ federal land.

mariner said...

The problem is that the judges increasingly see themselves as part of the system they're intended to protect us from.

Achilles said...

Ginsburg once again shows her fascist core.

The only freedoms she supports are abortion which is being implemented in ways indestiguishable from eugenics.

Original Mike said...

"Obama is said to be "deeply disappointed" in the decision. As he equates himself with Lincoln ..."

Perhaps he needs to re-invade the South and clear out all the racists.

Bryan C said...

"There is a role for Federal lands. Military bases, for instance. I think a valid argument could be made for many of the Federal Parks as well (though I think that these have been abused of late). "

If the federal government ever wants to quarter troops in our homes they can just declare that the house is a park.

jacksonjay said...


Silly me. I couldn't recall seeing the term equal sovereignty in the Constitution. I did a word search of the Constitution and sure enough, it ain't in there!

I am familiar with equal protection... but, seems to me that is different!

Kinda reminds me of Potter's dissent in Engel v. Vitale regarding the use of the metaphor "wall of separation."

Auntie Ann said...

How about the dairy compact, which priced milk based on the distance from its production to Eau Claire, WI?

Methadras said...

protecting us from the democratic dysfunctions of things like the "Cornhusker Kickback."

Using this example of blatant graft as a means for why the equal sovereignty principal is a structural framework for protection against something like the Cornhusker Kickback is a fail considering it still happened and no one stopped it and SCOTUS deemed it a tax on us all. Where do you come up with these rationalizations prof?

Simon said...

jacksonjay said...
"Silly me. I couldn't recall seeing the term equal sovereignty in the Constitution. I did a word search of the Constitution and sure enough, it ain't in there!"

The risks of imposing a fundamentalist protestant hermeneutic on the Constitution. *eyeroll* It's no more elegant whether done from right or left.

Dale said...
This comment has been removed by the author.
jacksonjay said...


Penumbras back at ya Mr. Simon!

Edward Lunny said...

It isn't the principle that is responsible for 'mischief" and/or "vexation". It is unprincipled, immoral, unethical, and all too frequently clueless and careless politicians, bureaucrats, and judges whom are the root and cause of the mischiefs and vexations.

Dale said...

The court got this one so very right. Ginsburg - as you so well point out - is so very, very wrong.

Let's put this as simply as we can:

Conservatives, as a general rule, prefer liberty, property, the accumulation of personal wealth and it's protection, and the right to be left alone if one so desires. Liberals (today's version), as a general rule, prefer central planning, favoritism from hose in power, personal license in matters sexual and physical.

If Democracy did not exist on the planet today, no liberal would ever be comfortable inventing it, seeking it. Liberal impulses always seek to the ascendancy of power and control over the lives of other men and women and the resulting ability to distribute rewards and spoils to favorites. No Conservative can ever be happy in a non-Democracy, because of the basic discomfort with anyone in a position of power.

To the Conservative, government is a necessary evil to be maintained but constrained, a means to an end. To the liberal, government is the end all: power over others, the basic manifestation of the first of the seven deadly sins.

X said...

Justice Ginsburg says the "equal sovereignty" principle "is capable of much mischief"


it's totally inconsistent with oral African tribal custom emanations too.

Simon said...

jacksonjay said...
"Penumbras back at ya Mr. Simon!"

The imposition of a liberal protestant "the text means nothing" hermeneutic is no better (and arguably much worse) than a fundamentalist "the words and nothing but the words" hermeneutic. The constitution is soaked through with the anglo-american tradition. Every attempt to wrench it thence is going to involve ever more complex (and ever less persuasive) exercises in throwing towels around to catch the water running off it.

Seeing Red said...

Ginsburg sleeps so much she may actually think it's 1965. Why do we listen to anything she has to say? She doesn't like The Constitution and actively encouraged was it Egypt to not follow anything in it.

Seeing Red said...

Ginsburg sleeps so much she may actually think it's 1965. Why do we listen to anything she has to say? She doesn't like The Constitution and actively encouraged was it Egypt to not follow anything in it.

Revenant said...

I'm amused that all Ginsburg's examples of "mischief" are things I'd be happy to see.

Revenant said...

Silly me. I couldn't recall seeing the term equal sovereignty in the Constitution.

The Articles of Confederation established the sovereignty of the states within the United States. Nothing in the Constitution changed that, and the tenth amendment to the Constitution clarified that rights possessed by the states were retained by the states unless the Constitution said otherwise.

Glad I could clear that up for you.

mark abrams said...

Is a wizened jewess equivalent to a (purportedly) wise latino ?

gregq said...

I'm trying to think of any principle that isn't "capable of much mischief." Can't think of any.

But I'm sure that's not a problem for Ginsburg, because she doesn't have any principles. All she has is a lust for power.

Crunchy Frog said...

She's had a pretty rotten week at the office so far.

Couldn't have happened to a nicer gal.

Simon said...

Seeing Red said...
"Ginsburg sleeps so much she may actually think it's 1965. Why do we listen to anything she has to say?"

When she writes for the court, we have to listen to what the court says through her pen. When she writes a concurrence in a 5-4 or 4-1-4 decision, we have to listen to her. When she writes a dissent, though, I couldn't care less. I've given up. I just read the brief for the side she supports, which, unlike Ginsburg's opinions, is disciplined by the requirements of rules 24 and 33.

n.n said...

The "selective rule of law" principle has demonstrated a greater capacity for mischief.

That said, is this Ginsburg's argument for abortion? She clearly does not recognize sovereignty in equal measure.

caplight45 said...

One person's 'mischief" is another person's sound constitutional thinking.

Dale said...

The left - which preaches the "living Constitution" - prefers to make an exception in it's progressivism for the Voting Rights Act, seeking to keep it in the world of 1965.


One must ask - at what point would the remedy ever be finished?

We all know the answer.

We soooo need a Republican Senate!

Tom said...

One of the issues with conservatives is they cling to the past. Today, liberals do too. The past for liberals is one where racial and sexual discrimination are the rule, not the exception. Today, en mass discrimination has been routed. It's not only legally unacceptable, it's socially unacceptable (see Dean, Paula). We must adjust our legal rules to this new reality. Our task as a nation is not to use the legal system to end systematic discrimination of racial minorities and women. Our task is ensure as far as possible a level legal playing field while maintaining a high social pressure toward racial and gender equality. That takes updating our laws and regulations to adjust to reality.

It seems the person most clear on this is Clarence Thomas. It's taken tremendous moral courage on his part to stand up for Equality before the law because Equality before the law provides the greatest opportunity for success for all people.

Anthony said...

If the supreme court were reliably liberal, Ginsburg might have a point. However, since a majority of the Court is capable of thought, cases like those she curs would mostly be disposed of. Directions to federal agencies about spending money generally don't implicate state sovereignty, and the sports book law being found unconstitutional would not be a major loss for anyone except Nevada (and New Jersey?) bookies, who shouldn't get congressional protection from competition.

rcocean said...

Yeah, ruth buzzi ginsburg, what a card! Haha.

Who could believe her nonsense? Hahaha.

Reality. Put another liberal on the SCOTUS, and "funny" Ruth "ACLU Stalinist" Ginzberg will be ruling America.

rcocean said...

That's what happens when you worship the "Constitution" which in practice means worshiping 5 Ivy League lawyers on the SCOTUS.

And once you get 5 Left-wing Ivy-League Lawyers on the SCOTUS - its going make the Warren Court look like a KKK meeting.

Leo said...

Doesn't this bear some resemblance to Scalia's dissent in Lawrence vs Texas, where he say that it will lead to the gay marriage?

Leah said...

Yes, I believe that "frets" was meant to be demeaning of Justice Ginsburg's concerns; after all, the word is usually used to warn against undue worry it, i.e., "don't fret about whatever."

I'd characterize Ginsburg's dissent as passionately held, clear-headed and a devastating critique of the majority opinion which guts the VRA.

Opinions can differ, of course.

What I'd like to ask Professor Althouse is just where she locates the"equal sovereignty" in the constitution itself?

Also, the "Cornhusker Kickback" didn't make it into the final version of the ACA.

Methadras is wrong when he/she claims that it succeeded, but for the Supreme Court; at least I think that's what was being claimed. Nor did anyone on the Supreme Court call it a tax, because that section of the bill was no longer part of it's final form.

It is true that Scalia made a cutting remark about The Cornhusker Kickback, but it was nowhere in the bill that he found to be unconstitutional in his dissent.

The 15th amendment explicitly authorized Congress to enforce by way of legislation the right of minorities to vote, which is precisely what the VRA does, apparently a bit too effectively for the taste of the five conservative Justices.

The arguments Chief Justice makes to show that there is something irrational about the re-authorization of the VRA in 2006, after weeks of hearings and a final vote by a huge by-partisan majority are weak and totally disconnected from the facts on the ground in the various states.

The vote in 2006 was not based on forty year old data, it was a response to on-going evidence contained in the legislative history of the reauthorization that the law was still needed.

It's clear from the comments here that most of your commentators, Professor Althouse, haven't bother to read liberal reactions to the decision.

I'd certainly look forward to any response you might care to give to some of those liberal responses.

Leah said...

Yes, I believe that "frets" was meant to be demeaning of Justice Ginsburg's concerns; after all, the word is usually used to warn against undue worry it, i.e., "don't fret about whatever."

I'd characterize Ginsburg's dissent as passionately held, clear-headed and a devastating critique of the majority opinion which guts the VRA.

Opinions can differ, of course.

What I'd like to ask Professor Althouse is just where she locates the"equal sovereignty" in the constitution itself?

Also, the "Cornhusker Kickback" didn't make it into the final version of the ACA.

Methadras is wrong when he/she claims that it succeeded, but for the Supreme Court; at least I think that's what was being claimed. Nor did anyone on the Supreme Court call it a tax, because that section of the bill was no longer part of it's final form.

It is true that Scalia made a cutting remark about The Cornhusker Kickback, but it was nowhere in the bill that he found to be unconstitutional in his dissent.

The 15th amendment explicitly authorized Congress to enforce by way of legislation the right of minorities to vote, which is precisely what the VRA does, apparently a bit too effectively for the taste of the five conservative Justices.

The arguments Chief Justice makes to show that there is something irrational about the re-authorization of the VRA in 2006, after weeks of hearings and a final vote by a huge by-partisan majority are weak and totally disconnected from the facts on the ground in the various states.

The vote in 2006 was not based on forty year old data, it was a response to on-going evidence contained in the legislative history of the reauthorization that the law was still needed.

It's clear from the comments here that most of your commentators, Professor Althouse, haven't bother to read liberal reactions to the decision.

I'd certainly look forward to any response you might care to give to some of those liberal responses.