John, Sam, and Tony all seem like nice men—genial and grandfatherly, and one of them might even have a sense of humor. If they swung by I’d love to have a beer or two with them (or, more likely, a martini or scotch, served up by a second-class law school servant in a bow-tie).
On the bench, however, John, Sam, Tony and co are mortifying men (I say men because Ruth Bader Ginsburg is by far the most sensible justice currently on the Court). For example, take the recent decisions in Ledbetter v. Goodyear, which told women that they have exactly 180 days after pay discrimination first occurs to get their act together and sue their employer. It doesn’t matter if the discrimination has been going on for decades, paycheck after paycheck. Never mind that the result of the discrimination add up to tens of thousands of dollars that the woman could have used to buy a string of pearls for herself or a few more six packs for her husband. (see http://www.slate.com/id/2189983/ for a hilarious recap)
This is wrong on so many different levels that I’m sure you can all figure it out on your own. I would just like to add, however, that the ineptitude of the Supreme Court does not end at Ledbetter. In the Kentucky lethal injection case (Baze v. Rees), the Chief Justice pointed out that even if a method of execution presented the risk of “severe pain,” nothing will be done unless a viable alternative to reduce the pain can be shown and implemented. Forget that other states have taken steps to reduce the possibility of state-inflicted “severe pain,” and that Kentucky is also perfectly able to do so.
Finally, we have the Indiana voter ID case (Crawford v. Marion County Election Board), where Justice Stevens put the burden on challengers of voter ID laws to prove that a history of voter fraud warrants changing current Indiana electoral laws. Despite the fact that voter discrimination is nearly impossible to prove, and such ID laws place the burden on poor and minority voters (even Richard Posner acknowledged this), the U.S. government will continue to uphold such laws. After all, keeping low-income minority voters from accessing the ballot boxes during election years is what democracy is all about.
We see through you, Supreme Court! We know that you pick the outcomes you like and then bend the law to achieve the outcome. If you’re going to hand down stupid decisions, however, please don’t use whacked up reasoning. (and also, less fractured decisions tend to help too—please see Chief Justice Warren’s artful maneuverings in Brown v. Board of Education for inspiration and/or common sense). You know things are going badly when I feel nostalgia for the Rehnquist Era.
3 comments:
YAY for first post!! Since making fun of the Supreme Court is like shuting fish in a barrel, I mostly agree.
However, I have to disagree with you about Crawford. For one thing, this case was originally brought by 4 advocacy groups, 2 Democrat politicians, and the Indiana Democratic Party. It was also a facial and not an as-applied challenge, which I think was a bad legal move. The Court probably would have had more sympathy if they could scrounge up a voter who didn't have an ID (like someone born in 1910 who works on a farm and has 26 grandkids).
I think the government does have a legit interest in preventing voter fraud, which is what the ID requirement is supposed to do. But, I also think that it could be a true burden on some people to have to buy an ID. So, why doesn't Indiana PROVIDE IDs for those of a certain income level? Or even for everyone?
I haven't read the Supreme Court decision, but I'm guessing they're giving deference to the state about how to run the elections. That's fine, maybe the Court doesn't need to decide all these things for the states, but the voters in Indiana should then turn their attention to the legislature and ask them to provide IDs to the public.
Now, if it could be proven that Republic legislators were ignoring such requests or putting these ID acts in place in order to keep themselves in power (because the poor tend to vote Democrat), I think that would be an area where the Court should step in.
Rachel, you're right that a litigation strategy involving a facial rather than an as-applied challenge is probably flawed. Indiana does provide free identification to voters who do not currently have one, though getting an ID is still difficult for those without easy accessibility to the circuit court clerk's office. There is evidence in the record showing that elderly, poor, and minority voters are disadvantaged because of the law. There is also evidence showing that voter fraud does occur in Indiana.
With all this said, I think the key is where the Court is placing the burden of proof. I agree with you and Justice Stevens that voter fraud is a legitimate concern, but as one of the dissenting opinions notes, the court could have approached the issue from a different angle and placed the burden on the state to prove that voter fraud is SUFFICIENTLY prevalent to warrant the passage of such a law. The state should also have to prove that such a law would actually decrease the likelihood of voter fraud, so that the benefits of its enactment outweighs the burden placed on low-income, minority, or elderly voters.
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