L to R: Clint Bolick, Goldwater Institute; Professor Melissa Murray, UC-Berkeley School of Law; and Judge Neil V. Wake, U.S. District Court in Phoenix.
Constitution Day was celebrated at the University of Arizona Law School as it has in the past—with a panel of smart people discussing compelling cases from the recent U.S. Supreme Court Term.
Due to conflicts in my schedule, I was unable to attend. Happily, a law student—who also is a great writer—offered to summarize the afternoon’s conversation.
The scribe’s name is Logan Rogers, and here is his background:
“Logan Rogers has a B.A. in journalism and an M.A. in U.S. history. He is a 2L student at the University of Arizona College of Law and a member of Arizona Law Review. He can be reached at email@example.com”
What follows is Logan’s reporting. If other lawyers and law students would like to contribute guest blog posts, please contact me at firstname.lastname@example.org. Together, we may be able to cover a state’s worth of legal happenings.
Voting rights, same-sex marriage, and consumers’ access to class action lawsuits were among the issues dissected on Monday at the James E. Rogers College of Law.
Con Law enthusiasts gathered at the University of Arizona to hear an expert panel discuss recent U.S. Supreme Court decisions during the 15th Annual Constitution Day program, sponsored by the William H. Rehnquist Center. Four controversial rulings provided the panelists with plenty of grist for a lively discussion.
The panel consisted of moderator Professor David Marcus, a specialist in international law and civil procedure at Arizona Law; Clint Bolick, an award-winning litigator who currently serves as Vice President for Litigation at the Goldwater Institute in Phoenix; Judge Neil V. Wake of the U.S. District Court in Phoenix, an alumnus of Arizona State University and Harvard Law School; and Professor Melissa Murray of UC Berkeley School of Law, a family and constitutional law expert and former Yale Law School classmate of Prof. Marcus.
Rehnquist Center Director Sally Rider
Marcus argued that Shelby County v. Holder “demolished” the Voting Rights Act. The Court’s decision specifically invalidated § 4(b) of the Act as unconstitutional. That section used a formula to identify jurisdictions with a history of discriminatory practices. Another section of the Act required these jurisdictions to get federal pre-clearance before changing their election laws.
Bolick and Wake contended that Marcus overstated the ruling’s damage to the Voting Rights Act. They emphasized that other sections of the Act still protected racial minorities from discrimination. Bolick agreed with the Shelby County ruling, and contended that § 4(b) unfairly punished jurisdictions for discrimination that took place several decades ago, despite that fact that voter turnout has reached racial parity in many of these jurisdictions. Wake and Bolick emphasized the financial and administrative burden the preclearance requirement imposed upon state and local governments.
Marcus countered that the progress toward voting equality in these regions was in large part due to the Voting Rights Act, including § 4(b). Murray agreed with Justice Ginsburg’s dissent, which suggested that recent actions by officials in some of these jurisdictions had discriminatory intent. She argued these facts demonstrated the necessity of upholding § 4(b). Marcus emphasized that Congress renewed the Act several times, including as recently as 2006. He stated that the Court engaged in “judicial immodesty” by overturning part of the Voting Rights Act.
The panel discussed the Court’s two big cases involving same-sex marriage, United States v. Windsor, which invalidated the federal Defense of Marriage Act (DOMA), and Hollingsworth v. Perry, which declined to rule on a California initiative banning gay marriage because the parties lacked standing.
Marcus called Windsor a “doctrinal mess” because its rationale for overturning a federal ban on same-sex marriage contained disparate elements of federalism, equal protection, and substantive due process. Bolick said he personally supported same-sex couples’ access to marriage (although he emphasized that this was not an official position of the Goldwater Institute), but he thought the opinion was a poorly reasoned “mish-mash.”
Marcus said that although Windsor provided “no immediate aid” for same-sex couples in Arizona, the opinion paved the way for an eventual Court ruling striking down state bans on gay marriage. Both Murray and Marcus thought some supporters of same-sex marriage on the Court tried to avoid legalizing it across the U.S. in this opinion. Murray suggested these justices feared a backlash if they got too far ahead of the public on the issue.
In Hollingsworth, the Court ruled that the plaintiffs had no standing, because only California state officials could defend the initiative that banned gay marriage, but they refused to uphold the law, leaving the private citizens who supported the initiative as the only possible litigants. The California Supreme Court held that grassroots proponents could have standing to defend initiatives in court, but the U.S. Supreme Court disagreed. Because the Court refused to take action in the case, a 9th Circuit court ruling that invalidated the initiative banning gay marriage on 14th Amendment grounds remained in effect. Therefore, same-sex marriage remains legal in California.
Wake and Bolick agreed that the Hollingsworth decision on standing was incorrect, in part because it allows state government officials to ignore the public’s wishes by refusing to enforce initiatives. Wake called this an “affront to the initiative process,” which he argued is an essential part of democracy in western states such as Arizona.
Murray said the fourth case, American Express Co. v. Italian Colors Restaurant, had less obvious appeal to people interested in “social justice” issues, but she said its importance had been underestimated by the national media. Marcus characterized the ruling as one of many examples of the pro-business leanings of the Roberts Court. The opinion upheld a contract containing a class-action waiver in the form of a mandatory arbitration clause. Marcus said this waiver made it difficult for consumers and small businesses to sue large corporations, because without the option of a class-action suit, the costs of litigation are often prohibitive for these parties.
Professor David Marcus, right, and the Constitution Day panel.
Wake said that although he thinks class-action lawsuits can sometimes be problematic and excessive, he believes the Court should not have allowed companies to contract their way out of class-action liability without offering other options besides arbitration. On the other hand, Bolick argued that enforcing contracts is “essential to a free society.” He contended that class-action lawsuits are bad for the public because the costs they impose on corporations lead to higher consumer-goods prices.
The event concluded with a discussion of whether the Court is too influenced by politics and popular opinion. Bolick suggested the Court should act on principle, with little concern for political implications, but other panelists emphasized the importance of the Court maintaining its legitimacy with the public.
The panelists disagreed on much, but all would likely agree on the importance of educating the public about the Court and its impact upon key social and political issues. Events such as Constitution Day at Arizona Law help shed light on the often-mysterious workings of the highest court in the land.
Questions and dialogue? Remember to contact Logan at email@example.com