High court sends a stern message

WASHINGTON —  The Supreme Court’s recent rulings upholding Indiana’s voter ID law and Kentucky’s use of lethal injections reflect a subtle but profoundly important shift in how the justices decide constitutional questions.

In the past, the court was willing to strike down laws before they went into effect out of concern that the rights of some people might be violated. For example, the justices used that approach to void laws that regulated abortion or restricted pornography on the Internet.

But since Chief Justice John G. Roberts Jr. joined the court three years ago, that approach has been cast aside. Broad and sweeping attacks on state laws have met with defeat.

Instead, Roberts and his colleagues have been sending a new, sterner message to legal advocates: Produce evidence that a law has actually violated someone’s rights, and name names if you can. Only then might the court rule that a law is unconstitutional for those in the same situation.

The high court’s newfound skepticism toward broad legal challenges was on display Monday when the justices, in a 6-3 decision, upheld Indiana’s law requiring voters to show photo identification at their polling places.

As with recent rulings rejecting broad challenges to laws on “partial-birth” abortions and lethal injections to carry out the death penalty, the court ruled that the plaintiffs had failed to prove their cases. In Indiana, for example, the challengers did not point to a single voter who had been deterred or discouraged from casting a ballot because of the need to obtain a photo identification from the state.

Roberts assigned Justice John Paul Stevens, often the court’s strongest liberal voice, to write the lead opinion upholding the law. With a tone of frustration, Stevens said the challengers had “advanced a broad attack on the constitutionality” of the measure by the Indiana Legislature, but failed to muster any hard evidence.

A lawsuit might have focused on elderly and disabled people who do not drive, or those who live in nursing homes. But they are entitled to vote by mail, and therefore do not need the photo ID.

“On the basis of the record that has been made in this litigation, we cannot conclude that the [Indiana] statute imposes excessively burdensome requirements on any class of voters,” Stevens wrote.

Two weeks ago, Stevens and Justice Stephen G. Breyer voted with Roberts and the court’s conservatives to uphold Kentucky’s lethal injections.

Monday’s voter ID opinion, as with the lethal injection ruling, left the door open to more targeted challenges.

This stand-back approach undoubtedly reflects the conservative bent of most of the justices. But Stevens agreed Monday that the court should be especially wary of striking down laws that reflected “the intent of the elected representatives of the people.”

The ruling also reflects Roberts’ inclination to rule narrowly whenever possible, said Richard J. Lazarus, a professor at the Georgetown University Law Center.

Shortly after becoming chief justice, Roberts told the graduating class at the Georgetown law school that he would seek to rule with a broader coalition of justices, but he would do so by deciding on the “narrowest possible grounds.”

Lazarus said the voter ID and lethal injection decisions were “an expression of the chief’s stated preference for narrow rulings. What is interesting is that Stevens has been willing now to join that effort, as has [Justice Anthony M.] Kennedy.”

In both cases, Justices Antonin Scalia and Clarence Thomas would have gone further and closed the door to future challenges. In the lethal injection case, Thomas and Scalia said a method of execution was not “cruel and unusual punishment” unless it was designed to inflict pain, such as burning at the stake.

By contrast, Roberts said an execution method was unconstitutional if it posed a “substantial risk of severe pain.” He added, however, that there was no evidence that Kentucky’s prison officials would fail to inject the condemned man with a proper dose of anesthetic. Kennedy and Justice Samuel A. Alito Jr. joined with Roberts. When Stevens and Breyer went along, the lethal injection method was upheld on a 7-2 vote.

Similarly, on Monday, Roberts, Stevens and Kennedy said that a state could regulate voting as long as its rules did not put a severe burden on any group of voters. Indiana’s law passes that test, they said. Scalia, Thomas and Alito would have gone further and said a voter ID requirement was “eminently reasonable” regardless of its effect on voters.

Last year, the court sounded the same note in the dispute over so-called partial-birth abortions. The justices upheld as constitutional a ban on the midterm abortion procedure, even though it had struck down a similar law seven years earlier. The key point of dispute was whether the abortion method was needed to protect the health of women.

In last year’s opinion, Kennedy said it was not needed because other midterm abortion methods were available. His opinion included one concession to the challengers. He said doctors could file a targeted suit that sought an exemption from the ban whenever they had a patient with a special medical condition that called for the use of the prohibited procedure.

In the year since then, no abortion rights advocates have filed such a suit.

After these setbacks, some advocates are rethinking their legal strategies.

Election law experts were quick to say it was a mistake to have rushed the voter ID case to the Supreme Court before there was any evidence of its actual effects.

Ohio State University law professor Daniel P. Tokaji said the Indiana ruling carried “an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review,” he wrote on an election law blog. “It’s fair to point out that plaintiffs’ lawyers put together a pretty weak case.”

After losing before a judge in Indiana and the U.S. Court of Appeals in Chicago, they took their case to the Supreme Court, and finished 0 for 3.

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