[Update 1: With commendable quickness, NPR has posted a correction to the web version of the story discussed below. Even the new version would benefit from additional qualification in contrasting the reaction between “political conservatives” and “academic and judicial conservatives,” but no point in nitpicking now.]
[Update 2: Nina Totenberg has posted a classy apology and explanation for her listeners/readers. She explains that the misattribution of the quotation resulted from a mix-up in her notes on the excellent (but lengthy) panel. My memory of the quotation and context may have been more vivid than other listeners’ because the lawyer sitting next to me (whom I do not know) nodded and muttered agreement when Professor McGinnis explained that Windsor‘s failure to articulate a rule of decision can be seen in the fact that the separate dissents of Chief Justice Roberts and Justice Scalia both provided plausible but vastly different accounts of the import of the majority’s holding.)]
Even Totenberg nods.
Nina Totenberg’s end-of-the-term review (HT: How Appealing) includes an extended rip on the Supreme Court’s 5-4 Voting Rights Act decision in Shelby County v. Holder, highlighting criticism by “academic and judicial conservatives.” The quoted critics are Charles Fried, Michael McConnell, and John McGinnis.
One of the most stinging quotations is attributed to McGinnis. Totenberg’s story characterizes McGinnis as arguing that “the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.” She then quotes McGinnis’s comments at a recent judicial conference: “I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court.”
The quotation comes from McGinnis’s comments on the Supreme Court review panel at the Fourth Circuit Judicial Conference. McGinnis did utter those words, but he was not talking about Shelby County. Instead, he was talking about Justice Kennedy’s opinion for the Court in United States v. Windsor. That’s a big difference.
A video clip of McGinnis’s remarks is available at http://www.c-spanvideo.org/clip/4457472. McGinnis’s comments are from roughly the 1:40 to 3:30 marks. The “singular failure” quotation is near the conclusion of those comments. McGinnis argues that Windsor is troubling “as a matter of craft” because it fails the “basic requirement of the rule of law . . . to articulate a rule of decision.”
McGinnis did comment on Shelby County during the same panel, but his comments were not nearly as critical as those on Windsor. In fact, McGinnis described the decision in rather sympathetic terms. He appealed to McCulloch‘s “pretext” limitation on congressional power and contended that the preclearance requirement decreased the competitiveness of elections by resulting in the “packing” of districts and reducing the ability of states to experiment with districting. The video of the full panel is available at http://www.c-spanvideo.org/program/313594-1. McGinnis’s comments on Shelby County begin around 19:45.
In the NPR story as it aired, the McGinnis clip on Windsor follows directly after the NPR story’s misquotation of his views on Shelby County. It is difficult to understand how this kind of mistake was not only made initially but also not caught in fact-checking.
Totenberg’s other critical quotations about Shelby County seem correct given their content and context. But while it may be true that “two out of three ain’t bad” in some circumstances, this is not one of them.
The idea that “academic and judicial conservatives” think Shelby County is wrong has already begun to spread. Rick Hasen’s influential Election Law Blog, for example, posts an extended excerpt from the Totenberg story under the post title, “Conservatives Criticize Shelby County Reasoning.”