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elleng

(130,156 posts)
Thu Aug 18, 2016, 01:04 PM Aug 2016

The Courts Begin to Call Out Lawmakers.by Linda Greenhouse

'In 1962, in the midst of the civil rights movement, African-American residents of Jackson, Miss., went to court to challenge the racial segregation of the city’s five municipal swimming pools, four of which were set aside for whites and one for blacks. When the plaintiffs won, the Jackson City Council responded by closing all the pools. It first claimed a “minor water difficulty” and later explained that integrated pools would present a safety problem and would be too expensive to operate. No pools, evidently, were preferable to integrated pools.

The black residents renewed their lawsuit, eventually reaching the Supreme Court. They argued there that the city’s real motivation — resistance to racial integration — violated the constitutional guarantee of equal protection. They lost.

The Supreme Court’s 1971 decision, Palmer v. Thompson, stands as the epitome of judges’ reluctance to call out lawmakers for acting with a bad motive, or any particular motive at all, especially if the action can be described as neutral on its face or if it comes with an explanation of surface plausibility. “It is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment,” Justice Hugo L. Black wrote, . . .

Against that background, it’s worth stopping to observe a notable development this summer. In the face of spurious explanations for public policies that would foreseeably inflict real damage on identifiable groups of people, judges and justices are abandoning the traditional diffidence of the judicial role and expressing a new willingness to call out legislatures for what they are really doing, not just what they say they are doing. . .

“Using race as a proxy for party may be an effective way to win an election,” Judge Motz wrote. “But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose.”

Judge Motz’s language was more pointed and conclusory than Justice Breyer’s. Justice Breyer stopped short of declaring that the Texas Legislature’s stated motivation was phony and that its real motive was to restrict access to abortion to whatever degree the courts would let it get away with. But the message was clear, and the two decisions’ overlap in analysis is striking. Absence of a documented problem? Check. Singling out a particular practice for onerous requirements? Check. The legislators’ knowledge of the likely impact? Check. An official justification that the evidence, examined in close detail, can’t support? Check.'>>>

http://www.nytimes.com/2016/08/18/opinion/the-courts-begin-to-call-out-lawmakers.html?

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