The Long March

In November, 1868, the newly freed slaves in South Carolina turned out to vote in the first presidential election they had ever been allowed to participate in. It was a momentous occasion; hundreds of thousands of persons who had been deprived of their rights for centuries were now finally able to enjoy all of the privileges of citizenship, including the right of suffrage. Voting in the 1860s meant travelling long distances to the county seat to cast a ballot, often requiring an overnight stay; it was an arduous process, but they were eager to make the attempt.

But many in 1868 found that they had made the trip for nothing. Armed militias of whites, determined to prevent blacks from voting, arose all across the South, particularly in South Carolina. Acting at the direction of Democratic party leaders, these bands of vigilantes, sometimes calling themselves Ku Klux Klans, confiscated Republican ballots, threatened prospective voters, and assassinated Republican candidates for office. On the two days of the November election, hundreds of armed whites rode all over upcountry South Carolina, surrounding polling stations and preventing blacks from entering. The tactic was a success; blacks were denied the right to vote in several South Carolina counties, and the local Democratic ticket was elected by large majorities in all of them.

And so, it is a measure of the distance we have come in 140 years, that yesterday an African-American man was elected as President of the United States, on the Democratic Party ticket, in an election that was almost entirely peaceful.

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With Obama Elected, Will This Be the Last Term for Justice Stevens?

Justice John Paul Stevens has long been regarded as a stalwart of the Supreme Court’s liberal wing, but he turns 89 next year.  If he cares about having an ideologically similar successor on the Court, he may want to retire on a timetable that will permit a successor to be confirmed in time for the start of the next October term.  Not only would this permit a smooth transition for his colleagues, but it would also allow soon-to-be-President Obama to take advantage of his party’s large majority in the Senate.  Mid-term elections are notoriously tough on sitting presidents, so it might be risky for Stevens to wait much longer — from the standpoint of maximizing the odds of an easy confirmation for a liberal successor. 

But I hope that Stevens will not act in so transparently political a manner.  The Court’s legitimacy rests to no small extent on perceptions that its members are above politics.  Sure, anyone who is paying attention knows that there are “liberals” and “conservatives” on the Court, and no once can reasonably expect the Justices entirely to suppress their fundamental political values when they decide cases.  But that sort of partisanship is different than trying to control the composition of the Court, which seems to me something considerably crasser.  I hope that Stevens remains on the Court for as long as he feels that he can function effectively — even if that means President Palin selects his successor.

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Finding a New Canon of Statutory Interpretation in an Old Case

Yesterday, Professor Anita Krishnakumar gave an intriguing presentation on her latest paper entitled “The Hidden Legacy of Holy Trinity Church: The National Narrative Canon.”  A copy of her paper can be found here.  In her paper, Professor Krishnakumar explores the controversial, but not often discussed, portion of the famous Holy Trinity Church decision.  The well-known, and still somewhat controversial, portion of the decision finds the Court relying on the “spirit” of the statute instead of its plain language — with support from legislative history.  The more controversial section of the opinion argues that even setting aside traditional methods of statutory interpretation, the statute — which was essentially an anti-immigrant labor statute — could not be enforced against the employer church because the United States of America “is a Christian nation.”  Professor Krishnakumar argues that this methodology constitutes an interpretive canon for statutory interpretation: the national narrative canon.  She also points to other Supreme Court opinions that use a similar methodology where the Court not only uses traditional interpretive canons, but also this national narrative canon — relying on history and public norms — in deciding the cases.

Professor Krishnakumar warns that this newly-identified, but long extant, national narrative canon poses a threat to the perceived legitimacy of courts’ statutory interpretation because it often runs contrary to the text of the statute, produces bad policy, and can create an unfair exception for a particular entity.  While the national narrative canon has been used selectively, it will be interesting to see if the Supreme Court — and indeed other courts — moves more towards this public norms approach to statutory interpretation.  In this age of New Textualism, it strikes me as likely that — as seen with the cases Professor Krishnakumar analyzes — to the degree its used, the Court will couple the national narrative canon with another more traditional approach to statutory interpretation in reaching its decision.  In this regard, the Court will continue to make the national narrative canon less effective in terms of precedential value, seemingly serving more as dicta.  However, its potential effect  should not be understated, as these portions of the Court’s opinion can still have powerful effects in the political realm in ways which may run contrary to our society’s commitment to pluralism and diversity.

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