CNN’s Joan Biskupic previews some content from retired judge David Tatel’s upcoming book, Vision: A Memoir of Blindness and Justice. Judge Tuttle was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bill Clinton and has been a highly respected judge on that court for nearly three decades. Some believe that if Al Gore had been elected president in 2000, he would have nominated Judge Tuttle to the Supreme Court if given the opportunity.
According to Biskupik, Tuttle responded to a common (but incorrect) complaint that the Roberts Court was less respectful of precedent than previous courts. She reports that Tuttle charges that the Roberts Court “has ‘overturned precedent’ and become a ‘tragedy’ for civil rights and the rule of law.” Assuming Biskupik’s reporting is accurate (as the book has not yet been published), see It’s a shame that Judge Tuttle repeated this assertion about the Roberts Court and precedent because, as I have shown, the Roberts Court is actually less prone to overturning precedent than previous courts. It is one thing to criticize the substance of the Roberts Court’s decision. It is quite different to make a manifestly erroneous claim about the nature of a court’s decision.
Biskupik’s story also confirms what many have long suspected about the Supreme Court’s decision. NAMUDNO v. HOLDERregarding the Voting Rights Act.
Tuttle wrote in the book that Ginsburg told him about the backroom dealings in the 2009 case Northwest Austin v. Holder, the precursor to Shelby County. The 2009 case left section 5 of the VRA intact, although its reasoning laid the groundwork for future repeal. (Tuttle wrote lower court opinions in both cases Northwest Austin and shelby county.)
When the Supreme Court ruled in 2009, Tuttle said: “What I don’t understand is why four liberal justices joined the chief justice’s majority opinion… in which he made an unnecessary and unnecessary challenge to the constitutionality of Section 5. Irrelevant attacks? Why did they leave?” I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions. “
“The justices initially voted 5-4 to declare Section 5 unconstitutional, but they later reached a compromise: The majority agreed to sidestep the big question about Section 5’s constitutionality, while potential dissenters agreed… to sign a critical opinion “With this compromise, liberal judges bought Congress time to save the cornerstone of the civil rights movement. “
Congress never acted, and Tuttle believes the 2009 compromise came at a cost to liberals: “They did pay a high price: criticizing the VRA for irrefutable opinions and, even worse, endorsing potentially far-reaching ‘s new ‘equal sovereignty’ doctrine,” Tuttle wrote. A doctrine that limits Congress’ ability to cherry-pick certain states in this case because of past discriminatory practices. “The opinion of the court Northwest Austin Thus planting the seeds for the destruction of District 5.
indeed Namudeno The decision “planted the seeds” shelby county believed that because it marked the concerns that formed the basis of the Constitution shelby county Decide. But according to this argument, there would be five votes to invalidate Article 5 either way. therefore what Namudeno Effectively (as some of us have pointed out before) giving Congress the opportunity to amend Section 5 (specifically updating the statute’s outdated coverage formula) in order to maintain its constitutionality. In other words, a majority of the Court was willing to remain silent and avoid invalidating federal statutes in order to defer to Congress’s interests. It is not the courts’ fault that Congress failed to take advantage of this opportunity.
Biskupic’s story also touches on 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 may have encouraged Justice Tuttle to resign under Joseph Biden Retired shortly after taking office. Adam Liptak came to the same conclusion in an interview with Tatel:
Judge Tuttle said his retirement was related to the lessons he learned from Justice Ruth Bader Ginsburg, despite calls for her to step down in time to allow President Barack Obama Obama named her successor, but she decided to remain on the bench.
“We had dinner at this table a few times,” he said. In the book, he describes “her irritation with commentators calling for her retirement.”
He said Justice Ginsburg’s contributions to the law will continue. “But it is undeniable,” he wrote, “that her death in office ultimately led to Roe’s downfall,” Judge Amy Coney Barrett said in President Donald J. Pushed by Trump and Senate Republicans, they rushed to court and cast the decisive vote to repeal Roy’s death sentence.
Judge Tuttle, 82, wrote that he resigned because he “did not want to risk filling my seat with a president who campaigned on picking judges who would fulfill his campaign promises.” “
But there’s more. “I am also tired,” he wrote, “of having my work scrutinized by a Supreme Court that appears to have such low respect for the principles to which I have devoted my life.”
I look forward to reading this book when it comes out.
