Saturday, August 20, 2016

The Courts Begin to Call Out Lawmakers

New York Times (Aug. 18, 2016): The Courts Begin to Call Out Lawmakers, by Linda Greenhouse:

In this op-ed, Linda Greenhouse discusses why it is important for courts to call out legislators when they pass legislation with unconstitutional purposes.  Courts often defer to legislators when it is possible to find a facially neutral purpose for legislation, which allows laws that undermine constitutional rights to remain in effect.

Greenhouse suggests that the Supreme Court's decision in Whole Woman's Health v. Hellerstedt and appellate decisions invalidating voter ID requirements in the North Carolina and Texas show a new willingness for courts to question legislative motives and to engage in a detailed consideration of facts to consider whether proffered facially neutral purposes for legislation are plausible. She writes

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.

Greenhouse describes how in both Whole Woman's Health and in the North Carolina case, the courts struck down laws based on findings that (1) there was an absence of a documented problem, (2) a particular practice was singled out for onerous requirements, (3) the legislators were aware of the likely negative impact on the exercise of constitutional rights and (4) there was a lack of evidence to support the neutral  justification for the law.  She suggests that these decisions may mark a new willingness for courts to strike down laws passed with unconstitutional motives.

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