Does judicial review protect states, too?

This is the fourth in a series about the oral argument in Shelby County v. Holder.

After three posts discussing the problems with oral argument in Shelby County v. Holder (and with oral argument more generally), I now want to turn to the problems of the reactions to oral argument.

Rick Hasen was struck by a proposition from Justice Scalia that States need extra protection (and goes into detail about Justice Scalia's language and this countermajoritarian idea). In short (at least, as I gloss), Justice Scalia suggested that it was problematic to cite broad congressional support for the renewal of the Voting Rights Act, and that judicial review was necessary to protect the rights of States from unconstitutional federal infringement: "The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act."

I'm inclined to read Justice Scalia's comment in light of his "comment . . . made earlier." That is, in an earlier exchange with Solicitor General Donald Verrilli, he characterizes the Voting Rights Act as "extraordinary procedures that deny the States sovereign powers which the Constitution preserves [sic] to them."

I think that when one is engaged in the rather messy business of Fourteenth Amendment, Section 1 (e.g., Equal Protection) jurisprudence, the Caroline Products point is a natural touchstone. But, even if the language of countermajoritarianism is at work in Justice Scalia's, it is not in the Section 1 context, and I don't think it's entirely appropriate to make an analog to, say, rights of particular minority groups in the United States. Equal Protection is essentially categories when the sovereign has acted within its legitimate scope (e.g., a state defining marriage, Congress defining a tax benefit), but in which we have an additional check on the process that restricts the legislature from doing certain things.

In the Voting Rights Act context, however, we are at the prior question; that is, we are asking whether this is within the legitimate scope of the sovereign.

The protection from the Court, in this context, is oriented toward the structure of the Constitution and its federalism framework. If certain things are reserved to the States (recall the largely-undiscussed question presented included a citation to the Tenth Amendment), like elections, then it is incumbent upon the Court to restrict acts of Congress that go beyond its authorized powers (i.e., the Elections Clause, the Fourteenth Amendment Section 5, and the Fifteenth Amendment Section 2).

This is, of course, not a novel argument. It existed in NFIB v. Sebelius, in which seven justices found that Congress exceeded its Spending Clause authority by coercing states to accept funds; it existed in Printz v. United States and New York v. United States and "commandeering"-like cases.

Now, it may be that one views these federalism concerns as unpersuasive in this context (e.g., that this is a legitimate act of Congress within its authority of the Fourteenth Amendment). But I don't think it's right to view Justice Scalia's argument as one in which states get "special" protection. It's just an observation that structural constitutional limitations function differently than, say, the Equal Protection Clause.

Or, perhaps I'm simply inclined not to overread the "normal political process" point as anything other than a reminder that judicial review exists for precisely such a reason--for the judiciary to act as a check on the legislature when it exceeds its proper authority (whether that's structural or rights-based).

The title of this post, then, is deliberately provocative: yes, of course, judicial review exists to protect States, too, just as it exists to protect individuals. Sometimes it is used as a mechanism to define the limited power of the federal government; at other times it is used as a mechanism to guarantee individual rights. And it is not terribly remarkable to think that it exists to serve multiple functions.

A version of this post originated as an email on the Election Law listserv.