Her latest starts with a bang:
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote. How on earth did it come to pass that the Supreme Court ruled a major provision of the Voting Rights Act of 1965 unconstitutional?
Addressing Mr. Rein, Justice Elena Kagan asked: “You said the problem has been solved. But who gets to make that judgment really? Is it you, or is it the court, or is it Congress?” When the lawyer answered that while Congress can examine a problem, “it is up to the court to determine whether the problem indeed has been solved,” Justice Kagan responded: “Well, that’s a big new power that you are giving us – that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.”
The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.
But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”
Justice Scalia, that’s called democracy.
Or it was.
It is all worth reading.
h/t George Cochran.