Blog

First, in Arizona v. Inter Tribal Council of Ariz., Inc.

Prior to the Constitution’s ratification, the phrase “manner of election” was commonly used in England, Scotland, Ireland, and North America to describe the entire election process. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Constitutional L. 1, 10–18 (2010) (citing examples).

Second, in Adoptive Couple v. Baby Girl (passim):

The reference to “other constitutional authority” is not illuminating, and I am aware of no other enumerated power that could even arguably support Congress’ intrusion into this area of traditional state authority. See Fletcher, The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121, 137 (2006) (“As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes”); Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev. 201, 210 (2007) (hereinafter Natelson) (evaluating, and rejecting, other potential sources of authority supporting congressional power over Indians).

These look to be Bob’s only citations. Well done!

At the conclusion of every oral argument, the Chief Justice says, “The case is submitted.” One would think that means that efforts to argue the case are over, and, the record is sealed.

As we saw in the runup to NFIB v. Sebelius, there were massive efforts to influence the Court after arguments concluded. But, at the least, we could hope that the record was sealed, and no new evidence was introduced. Well, not really.

Eagle-eyed lawprof Derek Muller noticed that in NFIB, and in Shelby County, Justice Ginsburg relied on sources published *after* argument date:

In her dissent in Shelby County v. Holder, Justice Ginsburg cites a piece about racial polarization that appeared in the Harvard Law Review Forum (p. 21).

I couldn’t help but notice that the article was published after  the oral argument inShelby County: a draft was released the week of oral argument (which took place February 27, 2013), and the final product published at the Harvard Law Review Forum April 27, 2013.

I then recalled that Justice Ginsburg cited post-oral argument work in National Federation of Independent Business v. Sebelius , last term.  There, argument took place March 27 & 28, 2012. But she cites a blog post by Ezra Klein published May 7, 2012 (p. 7).

I also noticed that Justice Thomas in Fisher cited a June 21 CNN article!

Today, the segregationists’ arguments would never be given serious consideration. But see M. Plocienniczak, Pennsylvania School Experiments with ‘Segregation,’ CNN (Jan. 27, 2011), http://www.cnn.com/2011/US/01/27 /pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court’s case file). We should be equally hostile to the University’s repackaged version of the same arguments in support of its favored form of racial discrimination.

Update: I read this too quickly. The article is from 2011, last visited 2013. My mistake.

Judicial factfinding is difficult enough, as the parties are unable to rebut these facts not subject to the adversarial process, but relying on facts that weren’t even in existence at the time of arguments is even more troubling. Here, offering a counter narrative is impossible.

These laws were halted by Section 5 last year. Now, with the coverage formulas out, Texas is free to proceed. Greg Abbott issued what was no doubt a statement prepared in anticipation of this decision:

With today’s decision, the State’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government

Opponents will now need to build a case under Section 2, which may take a while (though in this case, so much evidence has already been gathered, it may be easier than usual).

Laughlin McDonald of the ACLU, on a call with reporters, conceded that Texas has “a very strong argument” that in light of today’s Supreme Court decision, it can implement the Voter ID law and other laws that previously required federal approval

We’ll see how willing courts are to grant injunctive relief under Section 2.

I think this is the first cite to NFIB by the Supreme Court since, well, NFIB.

Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omit­ ted); id., at __ (GINSBURG, J., concurring in part, concur­ ring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis).