Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

I have previously argued that "judicial activism" is a bankrupt phrase. Rather than referring to any particular theory of judging, the judicial activism label is simply politically charged rhetoric that groups or individuals invoke to condemn court rulings with which they disagree. Conservative opposition to elements of Sotomayor's rulings proves this point.

Voting Rights for Felons
Recently, the Washington Times published an editorial that attempts to portray Sotomayor as an extremist who wants to give felons the right to vote. The editorial discusses her dissenting opinion in Hayden v. Pataki. In Hayden, the plaintiffs asserted that New York State systematically deprived blacks and Latinos of the right to vote by denying the franchise to incarcerated felons. The plaintiffs argued that New York's election law violates Section Two of the Voting Rights Act, which prohibits "any" policy that dilutes a racial group's votes. The plain meaning of the statute made it applicable in Hayden, but the majority explicitly looked beyond the statutory language to deny the statute's relevance and to dismiss the case.

Arch-conservative Justice Scalia is probably best known for his statutory interpretation jurisprudence which strongly condemns judges who look beyond the "plain meaning" of statutes and consult legislative history and other external sources. Sotomayor, echoing Scalia, grounded her dissent in the language of judicial restraint:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . [I]f Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to [the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

It is unclear whether New York's election laws actually dilute the votes of blacks and Latinos, but the court had to consider this as a "fact" at the particular stage of the litigation in which it issued a ruling. The only question the court considered was the applicability of the Voting Rights Act, and it actively explored external sources to reach its conclusion that the law was not applicable (See here for a discussion of Hayden and conservative flip-flopping).

Sotomayor Wants Your Guns
The latest story to spread fear and loathing through conservative America depicts Sotomayor as an anti-gun radical judge. Last year the Supreme Court held for the first time that the Second Amendment right to bear arms extends to individuals. The closely divided (5-4) ruling in District of Columbia v. Heller resolved (at least judicially) a highly contentious debate among legal historians and lawyers concerning the scope of the Second Amendment. Many scholars argued that the amendment only created a right for states to arm their militias, not a right for individuals to arm themselves. The Court rejected this view.

The Heller decision, however, does not instantly apply to states and municipalities. Longstanding Supreme Court precedent finds that the Bill of Rights only limits the federal government, not the states. This view is consistent with the history surrounding the Bill of Rights. The first ten amendments to the Constitution represent a compromise designed to secure ratification of the document. Political opposition to the Constitution centered upon the significant expansion of federal power that it created, relative to the Articles of Confederation. The Bill of Rights, which places limits on federal power, secured ratification. The explicit text of some of the amendments reveal this historical context. The First Amendment, for example, states that: "Congress shall make no law respecting an establishment of religion. . . ."

In a line of precedent decided primarily during the liberal Warren Era, the Supreme Court held that the "Due Process Clause" of the Fourteenth Amendment "incorporates" certain portions of the Bill of Rights and makes those freedoms enforceable against state governments (because the Due Process Clause explicitly constrains states). Nothing in the Fourteenth Amendment or in the history surrounding the amendment, however, explicitly states that it incorporates the Bill of Rights. Instead, incorporation resulted from liberal judicial interpretation.

As a result of a case-by-case process, the Supreme Court has deemed most of the Bill of Rights enforceable against state governments. Among the exceptions is the Second Amendment. In 1886, the Supreme Court ruled in Presser v. Illinois that the Second Amendment only limits the federal government and not the states. In 2005, the Second Circuit followed Presser and held in Bach v. Pataki that the Second Amendment does not limit state legislatures. In 2008, Sotomayor sat on a Second Circuit panel that issued a per curiam opinion in Maloney v. Cuomo that follows Presser and Bach and finds that the Second Amendment does not apply to states.

Although incorporation is a liberal doctrine and Supreme Court and Second Circuit precedent finds the Second Amendment unincorporated, conservatives have blasted the Maloney decision. But their criticism is blatantly hypocritical: They are condemning Sotomayor for following precedent. That Sotomayor's rulings adhere closely to precedent and statutory language undermines one of the popular (yet deceitful) tropes her conservative opponents have advanced against her -- that she lacks impartiality and is an ideologue. By condemning Sotomayor for adhering to precedent and strictly following the language in a statute, conservatives are behaving like inconsistent ideologues who only value judicial restraint and fidelity to precedent if doing so leads to conservative outcomes.

Final Thought
Yesterday, a very conservative panel of esteemed judges in the Seventh Circuit, including Judges Richard Posner and Frank Easterbrook, issued an opinion declining to find that the Second Amendment is incorporated. The court stated that the Supreme Court must make this decision, especially because its own precedent holds that the amendment does not apply to states. The panel also explicitly cites to Maloney as influencing its ruling. Perhaps other conservatives will embrace consistency on this issue as well. Actual caselaw refutes the conservative portrayal of Sotomayor as an outcome driven ideologue. If her opponents care about facts, rather than rhetoric, they will soon shift their views.

Note: For links to all of the essays I have written regarding Sotomayor, see: Sonia Sotomayor on Dissenting Justice.

Major Hypocrisy Alert: Washington Times Condemns Sotomayor for Strictly Adhering to the Text of Statute When Deciding Felon Voting Case

The Washington Times is on a mission to raise questions about Sonia Sotomayor -- by any means necessary. Its latest editorial headline proclaims: The Franchise for Felons: Sotomayor Would Let Prisoners Vote. The editorial discusses Sotomayor's dissenting opinion in the 2006 case Hayden v. Pataki. In its rush to "get" Sotomayor, the Washington Times takes a position favoring judges departing from the plain language of statutes, which contradicts sacred conservative principles.

Background of the Case
The Hayden case involved a lawsuit brought by black and Latino inmates challenging a New York elections law that denies them the opportunity to vote. The inmates claimed that the law violated Section 2 of the Voting Rights Act, which applies to any state election requirement that has the "effect" of discriminating on the basis of race -- regardless of the state's underlying intent.

In 1996 the Second Circuit split evenly on the merits of an identical lawsuit. In 2006 Hayden was consolidated with a similar case and brought before the entire Second Circuit for review. The full Second Circuit dismissed the lawsuit by an 8-4 vote. Sotomayor dissented, as did esteemed judges Barrington Parker, Guido Calabresi and Robert Katzman. There were five separate concurring opinions.

In two other felon voting cases, the Ninth Circuit reached a different conclusion than the Second Circuit, but the Eleventh Circuit reached the same conclusion. The voter statutes in those two cases, however, are broader in scope, banning felons from voting even after release.

Hayden Majority's "Expansive" Statutory Interpretation
The majority in Hayden concedes that the plain language of the Voting Rights Act does not exempt felon-related voting legislation and that it applies to "any" voting requirement. Accordingly, to reach its conclusion, the majority decides to look beyond the plain language of the statute:

There is no question that the language of [Section 2 of the Voting Rights Act] is extremely broad —- any “voting qualification or prerequisite to voting or standard, practice, or procedure” that adversely affects the right to vote -— and could be read to include felon disenfranchisement provisions if the phrase is read without the benefit of context and background assumptions supplied by other statutory and Constitutional wording, by history, and by the manifestations of intent by Congress at the time of the VRA’s enactment and thereafter.

We are not convinced that the use of broad language in the statute necessarily means that the statute is unambiguous with regard to its application to felon disenfranchisement laws. In any event, our interpretation of a statute is not in all circumstances limited to any apparent “plain meaning” . . . . Here, there are persuasive reasons to believe that Congress did not intend to include felon disenfranchisement provisions within the coverage of the Voting Rights Act, and we must therefore look beyond the plain text of the statute in construing the reach of its provisions. . . .

Normally, a judge's decision to look beyond the language of a statute in order to come up with an interpretation that is not supplied by the law's plain meaning would send conservatives into a lather. Indeed, Justice Scalia is known for sticking closely to the plain language and insisting that Congress change the statute if it dislikes the outcome in a particular case. Scalia also rejects efforts to "find" the meaning of legislation by resorting to legislative history -- which the Hayden majority explicitly does. Narrow statutory reading is a hallmark of judicial restraint, which conservatives claim to love. Apparently, the Washington Times does not like this rule if following it would produce a liberal result.

Hayden Dissent
The Hayden dissenters chided the majority for essentially rewriting the statute to reach its conclusion. Because the case was decided on a motion to dismiss, the court was required to treat the allegations in the complaint as facts -- meaning that the court had to accept as true plaintiffs' assertion that New York's felon law systematically excluded blacks and Latinos from voting. Therefore, the only question the court needed to decide at this stage of the litigation was whether the Voting Rights Act applied to the case. Despite the plain language of the statute which imposes a broad prohibition against discriminatory laws, the majority dismissed the case.

Sotomayor's dissent epitomizes the judicial restraint that conservatives claim to appreciate. She also seems to respect the institutional power of Congress. Sotomayor argues that:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority’s “wealth of persuasive evidence” that Congress intended felony disenfranchisement laws to be immune from scrutiny under § 2 of the Act . . . includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

Perhaps appreciating the irony that its editorial attacks Sotomayor for exercising judicial restraint, the Washington Times does not even attempt to engage this portion of her argument. The newspaper's silence on this issue speaks volumes.

The Washington Times Distorted Analysis
Despite the fact that the Hayden majority concedes that its ruling looks beyond the plain language of the statute, the Washington Times inaccurately concludes that Sotomayor offers a "dubious and extremely broad reading of the Voting Rights Act." This is plainly false. Sotomayor's reading, as demonstrated above, is in fact quite narrow and limited to the text of the statute.

The Washington Times also makes hay of the fact that she only wrote a brief (but apparently very broad) dissent. But with a lead opinion, five concurrences and three additional dissents, her decision to remain brief is hardly remarkable -- except perhaps to journalists.

The Washington Times also butchers the Hayden majority's logic. The case does not turn on the fact that "the Voting Rights Act was passed to help further the aims of the Constitution's 14th and 15th Amendments [and] the 14th Amendment specifically allows states to deny the vote to those convicted of crimes." Instead, as the majority explicitly concedes (see footnote 10), the Voting Rights Act was passed to enforce the Fifteenth Amendment, which (following interpretative rules established by conservative Supreme Court precedent) places a direct limitation on state authority supplied by the Fourteenth Amendment.

Accordingly, even if the Fourteenth Amendment allows states to restrict the ability of felons to vote, they cannot exercise this power in a way that amounts to racial discrimination. The Voting Rights Act elaborates the Fifteenth Amendment antidiscrimination principle and provides that "intent" is not a requirement of a violation. On this issue, the dissent has the better argument.

The Washington Times also makes the absurd claim that Sotomayor's opinion would allow Congress to "prohibit New York from doing something the Constitution itself specifically endorses." That is absolutely preposterous. The plaintiffs only argued that New York cannot discriminate on the basis of race in the voting context. The complaint does not argue the felon disenfranchisement statutes are per se unconstitutional -- and neither does Sotomayor.

The logic employed by the Washington Times would allow states to pass laws providing that only "black and Latino" or "white" felons cannot vote because, after all, states can ban all felons from voting pursuant to the Fourteenth Amendment. But this is an absurd result. Because the Voting Rights Act does not require "intent," New York's felon voting policies could operate as the practical legal equivalent of this hypothetical (and clearly unlawful) statute. Sotomayor and the other dissenters simply would have given the plaintiffs the opportunity to prove this point.

Conclusion
The most interesting aspect of this case is the fact that it turns on statutory interpretation -- not the announcement of a new constitutional right. Accordingly, Congress could merely reverse the ruling, if it disagrees. This is precisely the course of action Congress took with respect to the Ledbetter decision. This is precisely the argument that Justice Scalia frequently makes with respect to statutory interpretation.

Driven by partisan politics rather than ideological consistency, the Washington Times criticizes Sotomayor for following Scalia's lead and issuing a narrow reading of a plainly worded statute. The Washington Times should retract its misleading, blindly partisan, and "un-conservative" editorial.