Justice Stevens Rehabilitation Tour Pulls Into Shelby County

July 18th, 2013

I’m convinced Justice Stevens writes articles and gives speeches for the sole purpose of opining on the Supreme Court. I can’t recall a single thing he has written, or said, in the last few years, that hasn’t touched on a recent case.

Will Baude links to a recent piece Stevens wrote in the New York Review of Books, the most recent stop in the John Paul Stevens Rehabilitation Tour.

Here is the lead jab:

The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War—or more precisely continuing to use the formula that in 1965 identified those states—is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.

The bolded part is somewhat misleading. Stevens implies that the Section 4 formulas only covered the states that lost the Civil War. This is demonstrably false. Did you know that Manhattan (but not Staten Island) was covered? What about Alaska?

And this part is too rich. Stevens critically references an opinion Roberts wrote–NAMUDNO–that Stevens joined!

The Court’s heavy reliance on the importance of a “fundamental principle ofequal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states.

Those time bombs with long fuses can catch up on you, huh JPS.

And Stevens, of course, had to throw a hook at Justice Scalia:

That unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice’s opinion. It struck me as even more questionable when I read Justice Scalia’s dissent in the Defense of Marriage Act case, which was decided the next day. In his dissent, Justice Scalia contended that the Court erred in its antecedent decision that it had jurisdiction to reach the merits of the constitutional challenge to DOMA. The “diseased root” that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case.

I have this eerie premonition that he will review my book as a means to talk about NFIB.