The Voting Rights Act Through the Justices‘ Eyes: NAMUDNO and Beyond

Joshua A. Douglas

88 Texas L. Rev. See Also 1

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In this Essay, Douglas tells us that “[t]he most surprising action from the Supreme Court’s latest term may be what it did not do:  strike down Section 5 of the Voting Rights Act . . . as unconstitutional.” Douglas explores the Court’s recent decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), in which the Justices managed to avoid invalidating Congress’s reauthorization of the “preclearance” provision of the Voting Rights Act (which requires preapproval for changes to voting procedures in covered jurisdictions). This Essay explores the reasons behind the Court’s 8–1 opinion, which resolved the issue on narrow statutory grounds, and what the comments in dicta by various Justices may mean for future election law cases.

Douglas first discusses the Court’s statutory interpretation and constitutional avoidance approach in NAMUDNO.  He then explains how each current Justice generally views the Voting Rights Act (VRA) by analyzing their voting patterns in previous VRA cases.  He concludes that the Court’s recent approach in NAMUDNOand other election law cases reveals a trend toward “strategic compromise” among the Justices in this area. Over the past few years, Douglas argues, Justices on the Court have “compromised their usual positions in election law cases in favor of a strategic and incremental approach to effectuate their long-term goals (or ward off starker and less favorable results).”

This Essay includes an Appendix — a table of VRA cases and individual Justices’ voting records in them used by the author in his analysis, which may be useful to those seeking more in-depth information about the Supreme Court’s jurisprudence concerning the Voting Rights Act.

Making Adequacy More Adequate

David Marcus

88 Texas L. Rev. See Also 137

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In this piece, Professor Marcus proposes that Professor Tidmarsh’s adequacy metric would serve better as a standard than a rule.  Marcus praises the metric as a convincing and stimulating game-changer, but he also highlights a potential criticism: the adequacy requirement, foundational as it is, should not be reduced to any single test, even one as sensible as Tidmarsh’s.  To prove his point, Marcus examines two categories of cases, one for which a strict application of the “do no harm” test would preclude arguably desirable class litigation, and one for which his test would permit unattractive distributional inequities among class members.

The Power of Warm Glow

Usha Rodrigues

88 Texas L. Rev. See Also 149

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In this Response, Professor Rodrigues states that while she largely agrees Professor Galle’s argument that nonprofit charities cannot be reduced to their tax-exempt status, she disagrees with him on two points.  First, Rodrigues argues that Galle overstates the problem posed by for-profit firms offering charitable services.  Second, she insists that Galle understates the power of the “warm glow” in the nonprofit organization.

Comparative Originalism

David Fontana

88 Texas L. Rev. See Also 189

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In response to Prof. Greene’s article, Prof. Fontana discusses some complications of Prof. Greene’s arguments. Prof. Fontana argues that comparing the United States with Canada and Australia involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. Prof. Fontana argues that, when the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby diminishing the importance of originalism.

The Challenges of Fiduciary Administration

Glen Staszewski

88 Texas L. Rev. See Also 155

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In his Response to Professor Criddle’s proposal of a fiduciary model of popular representation in administrative regulation, Professor Staszewski generally agrees with Criddle’s skepticism of the presidential-control model but identifies four challenges that scholars must overcome when developing alternative theories to the presidential-control model of administrative regulation.  First, he argues that scholars should account for the importance of elections.  Second, they should account for the proper role of political preferences.  Third, they must develop oversight mechanisms apart from judicial review that are not prohibitively expensive.  Finally, they should seek to reduce the fear of uncertainty accompanying the abandonment of the presidential-control model.

How Embattled Are U.S. CEOs?

Jens Dammann

88 Texas L. Rev. See Also 201

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In his Response to Professors Kahan and Rocks, Professor Damman cautions against blind acceptance of the proposition that corporate CEO’s are losing power vis-à-vis shareholders. First, he notes that questions of power are complex and difficult to measure. Second, he questions Kahan and Rock’s estimations of the impact of statutory and privately adopted rules. Finally, he critiques Kahan and Rock’s detection of a long-term trend in losses of power for executives.

The Functions of Ethical Originalism

Richard Primus

88 Texas L. Rev. See Also 79

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In his Response to Professor Greene’s Article, Professor Primus contends that the stakes of originalist argument can go well beyond any particular case in which originalist arguments are made. He identifies three functions of ethical-originalist argument that go beyond the realm of deciding particular cases. First, originalist argument can establish the content of American history as a value in itself. Second, it can help to legitimate the constitutional system by creating an affinity between the present generation and the generation of heroic constitution makers. And third, it can establish a particular speaker as the authoritative bearer of the American constitutional tradition, thus empowering him to arbitrate questions in the name of that tradition.

There‘s Still Hope: Life After Giles v. California

Cheryl Hanna

87 Texas L. Rev. See Also 79

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In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.

The problem created in Giles is that prosecutors are required to prove that the defendant had the specific intent to silence his victim when he killed her, before allowing forfeiture of confrontation rights.  However, Professor Lininger’s article grabs onto language in the majority and concurring opinions suggesting that lower courts are permitted to infer that intent, and develops three per se rules for when it is appropriate.  She believes that since this test focuses on the broader context of domestic violence abuse, as opposed to focusing on just the moment the murder occurred, it should help prosecutions of domestic abusers.

She also focuses on the question of whether advocates for the victims of domestic abuse should emphasize the gender bias in these crimes, showing how the law treats women unfairly in this context, or whether they should de-emphasize it in order to win over the likes of Justice Scalia.  After discussing the issue, she concludes that trying to win over Justice Scalia is pointless because he is too committed to originalism in the Confrontation Clause context to be affected either way by the disparate impact this has on women.

The Meaning of “Intellectual Privacy”

Christopher Slobogin

87 Texas L. Rev. See Also 25

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In his comment to Intellectual Privacy by Neil Richards, Professor Slobogin praises Richards for his scholarship, but identifies two pragmatic problems with Richards’s argument.

The first is a problem of classification.  Slobogin argues that what Richards terms “intellectual records,” which includes lists of books one owns and websites one visits, often reveal little more about us than conclusions that can be drawn from data about our purchases.  He finds the distinction Richards draws to be incomplete.  It is not clear to Slobogin why data about purchases do not merit extra protection when, by piecing together large numbers of otherwise innocuous data on purchases, one may reach the same conclusions as if one had access to intellectual records.  Slobogin also questions the role of the First Amendment in privacy protection when Fourth Amendment doctrine and scholarship address, if not solve, many of the problems Richards identifies.

Giles v. California: Is Justice Scalia Hostile to Battered Women?

G. Kristian Miccio

87 Texas L. Rev. See Also 93

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In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.”

She argues that the Court’s opinions in GilesDavis v. Washington, and Town of Castle Rock, Colo. v. Gonzalez, which were all written by Justice Scalia, reflect Scalia’s contempt for battered women.  In Miccio’s opinion, Scalia’s formalistic legal reasoning in this area of the law has been inconsistent, while his misogynistic view of women has been undeniably constant.