Friday, August 30, 2013
Justice Ginsburg and Justice Holmes
Speaking of Shelby County, Justice Ruth Bader Ginsburg in her powerful dissent had by far the better argument, and might more reasonably have cited Holmes. She pointed out that the majority was ignoring the Court's own precedents in order to announce a new doctrine, a rule that the states must all be treated the same by Congress. Aside from the lack of any basis for this rule in precedent or in the Constitution, as she also pointed out, the majority had neglected to address the first question in the case, whether Shelby County's history of continued racial discrimination justified the Attorney General in demanding to see their latest efforts in election law. In its eagerness to announce a doctrine, the majority of the Court neglected their sole constitutional duty, which was to decide the case before it. Holmes was the great practitioner of the common law, and has always been highly regarded for his willingness to defer to the reasonable enactments of Congress, and his modest view of the Court's duty simply to follow precedent, by deciding like cases alike. Justice Ginsburg shows herself the inheritor of his deep sense of the justices' constitutional duty, and of the best of the common law tradition.