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Waiting for Shelby

June 19, 2013 Leave a comment

Seal_of_the_United_States_Supreme_Court.svgSomehow, some way, the Supreme Court has managed to maintain its shroud of secrecy, despite being located in Washington, D.C. where government leaks are commonplace. Those with information like to talk (even as “unnamed sources”) but that’s not the way the Supreme Court operates.

As such, we don’t know what the Court will be announcing tomorrow. Much like waiting for the white smoke to come out of the Vatican, we won’t know what’s coming until it’s actually given to us. Maybe they’ll release an opinion on Shelby County v. Holder, the case involving Section 5 of the Voting Rights Act. Maybe they won’t. We’ll find out tomorrow, and if not tomorrow, then on Tuesday, and if not on Tuesday, then perhaps later next week.

In the meantime, however, groups have been speculating and gathering up info on the case, bracing for what might come if the preclearance provision is declared unconstitutional.

The Columbia Journalism Review has an exhaustive roundup of the case, linking to stories that provide background, while also providing state examples and a toolkit for reporters.

Colorlines has speculated that states have been holding off on instituting their restrictive voting laws, such as voter ID in Virginia, until the Court hands down its decision. Virginia’s strict law might not hold up through Department of Justice review (although a weaker voter ID bill was cleared by the DOJ last year), but depending on the outcome of the case, it might not have to.

Other states could jump into the fold and introduce their own restrictive voting laws without having to worry about preclearance, says the Brennan Center. In their report, If Section 5 Fails: New Voting Implications, Myrna Pérez and Vishal Agraharkar say that jurisdictions could re-enact changes that were previously struck down or deterred by Section 5 and adopt new restrictions, while in the process creating new barriers for voters, and particularly voters of color.

If Section 5 falls, democracy takes a huge, huge hit. Until we get the decision, though, all we can do is wait.

SCOTUS at week’s end

It was a big week for the Supreme Court as some landmark decisions were handed down, including one invalidating some provisions in Arizona’s anti-immigrant law, a decision to not hear arguments and invalidate Montana’s law prohibiting some corporate political contributions, and finally, on Thursday, the long awaited decision on the constitutionality of the Affordable Care Act.

SCOTUSblog provided some amazing coverage of the Affordable Care Act decision as it came down, and continued to do so, sharing commentary and analysis for hours after the ruling. They have a layman’s translation of the decision. In short, the Affordable Care Act’s individual mandate to have health insurance survives as a tax, and the rest of the law is upheld as well. The only provision limited was the Medicaid expansion.

The decision, however, is fairly nuanced, and sets up some interesting arguments for the Court in years to come. The opinions issued do not present a 5-4 decision, necessarily, said Akhil Reed Amar, a constitutional scholar at Yale Law School to Ezra Klein of the Washington Post. The decisions come down more like 4-1-4. Klein explains:

One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as [Georgetown Law Professor Randy Barnett]’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.

While the Chief Justice’s opinions reached the same result as the more liberal/moderate wing of the Court, the reasons for reaching that opinion split in two different directions. The law was upheld on grounds that it is a tax, while the Chief Justice agreed with the dissenters that the law could not be upheld under the Commerce Clause of the Constitution.

Adam Winkler, professor of constitutional law at UCLA writes at SCOTUSblog about what this could mean in upcoming sessions:

Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.

The Supreme Court’s approval rating has reached new lows in recent months as Americans have seen the institution as increasingly partisan. Perhaps the Affordable Care Act did a little bit to save the Court in the eyes of half of the public, but there’s a decent chance it did nothing to help itself in the eyes of the other half.

Televise the Supreme Court?

Last week the Supreme Court heard three days of oral arguments over the Affordable Care Act. Over the course of the next few months, the Court will act entirely behind closed doors as they decide the fate of the Affordable Care Act (though in likelihood the Justices have already taken their vote), with a full decision coming in June.

Transparency can be a big step in changing the public’s view of the Court. Although the Court took steps to make audio recordings and transcripts of the health insurance hearings available the same day as arguments took place, cameras are still not allowed in the courtroom, and the Court declined a request from C-SPAN to broadcast the arguments over health insurance reform. However, media outlets have been more persistent in their calls for the Court to open its doors to cameras. Jules Witcover writes in the Chicago Tribune, arguing for broadcasting Supreme Court proceedings:

While virtually all other aspects of the American political system at work can today be observed directly by the citizenry, either live or on taped rebroadcast on television, the Supreme Court in session remains essentially in the dark. Hand-drawn sketches of the justices and lawyers must suffice because photographs also are prohibited.

A poll from this January by the Kaiser Family Foundation shows that 75% of the public believes that the Supreme Court Justices let their ideologies play a role in their decisions, and 59% believe that on this particular case, the judges will allow their own ideologies to sway their decision. Could more transparency move the public in their view of the Court?

Cameras in the courtroom will likely not go all the way in swaying the public’s opinion. However, it could be an important first step by showing the public what goes on in the highest court in the country, one in which a large majority of Americans will never set foot.

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