The Volokh Conspiracy
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Judge David Tatel on the Roberts Court, the Voting Rights Act, and the Notorious RBG
In a forthcoming book. retired Judge David Tatel offers candid thoughts and spills the tea.
CNN's Joan Biskupic offers a preview of some of what's contained in retired Judge David Tatel's forthcoming book, Vision: A Memoir of Blindness and Justice. Judge Tatel was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton, and was a highly regarded member of that court for nearly three decades. Had Al Gore been elected President in 2000, some believe he would have nominated Judge Tatel to the Supreme Court if given the opportunity.
According to Biskupic, Tatel echoes the common (and incorrect) complaint that the Roberts Court has been less respectful of precedent than prior courts. She reports that Tatel charges that the Roberts Court "has 'kicked precedent to the curb' and become 'a tragedy' for civil rights and the rule of law." Assuming that Biskupic's report is accurate (as the book has not yet been released) it is a shame to see Judge Tatel repeat this claim about the Roberts Court and precedent because, as I have shown, the Roberts Court has actually been less prone to overturn precedent than prior courts. It is one thing to criticize the substance of the Roberts Court's decisions. It is quite different to make demonstrably false claims about the nature of the Court's decisions.
Biskupic's story also confirms what many have long suspected about the Supreme Court's decision in NAMUDNO v. Holder, concerning the Voting Rights Act.
In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA's Section 5 intact, although its reasoning laid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)
When the Supreme Court ruled in 2009, Tatel said, "What I couldn't figure out was why the four liberal justices had joined the Chief's majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5's constitutionality? Why had they gone along with that part of the Chief 's opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions."
"The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5's constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5," the judge wrote. "With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement."
Congress never acted, and Tatel contends the 2009 compromise cost the liberals: "They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new 'equal sovereignty' doctrine with potentially profound implications," Tatel wrote of the principle that restricted Congress' ability to single out certain states, in this situation because of past discriminatory practices. "The Court's opinion in Northwest Austin thus planted the seeds for Section 5's destruction."
It is certainly true that the NAMUDNO decision "planted the seeds" for the Shelby County holding, in that it flagged the constitutional concerns that underlay the Shelby County decision. But according to this account, there would have been five votes to invalidate Section 5 either way. Thus what NAMUDNO actually accomplished (as some of us have pointed out before) was to give Congress the opportunity to revise Section 5 (and, specifically, to update the statute's obsolete coverage formula) so as to preserve its constitutionality. In other words, a majority of the Court was willing to stay its hand, and refrain from invalidating a federal statute, in the interest of deferring to Congress. That Congress did not avail itself of the opportunity, is not the fault of the Court.
The Biskupic story notes other tidbits from the book, such as how Justice Ginsburg resented the pressure to retire under a Democratic president, and suggests that RBG's death during the Trump Administration likely encouraged Judge Tatel to retire soon after Joseph Biden took office. This Adam Liptak interview with Tatel suggests much the same:
Judge Tatel said his retirement was linked to a lesson he drew from Justice Ruth Bader Ginsburg's decision to remain on the bench despite calls for her to step down in time to let President Barack Obama name her successor.
"We had dinner here at this table several times," he said. In the book, he described "her annoyance with commentators who were calling for her retirement."
Justice Ginsburg's contributions to the law will endure, he said. "But there's no denying," he wrote, "that her death in office ultimately contributed to Roe's downfall," with Justice Amy Coney Barrett — rushed onto the court by President Donald J. Trump and Senate Republicans — casting the decisive vote to eliminate the constitutional right to abortion.
Judge Tatel, now 82, wrote that he had stepped down because he "didn't want to take the chance that my seat might be filled by a president who'd campaigned on picking judges who would fulfill his campaign promises."
But there was more. "I was also tired," he wrote, "of having my work reviewed by a Supreme Court that seemed to hold in such low regard the principles to which I've dedicated my life."
I look forward to reading the book when it is released.
